BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. No. 95/2008 against C.C. 53/2007, Dist. Forum, Chittoor.
Between:
M/s. United India Insurance Company Ltd.
Rep. by its Branch Manager, Gandhi Road
Madanapalle Town & Mandal
Chittoor Dist. *** Appellant/
. O.P.
And
C. Prabhakar Reddy
S/o. C. Ramalinga Reddy
Age: 45 years,
D.No. 3/141, Near Bank of Baroda
Kalikiri Town & Mandal
Chittoor Dist. *** Respondent/
Complainant
Counsel for the Appellant: M/s. B. Devanand.
Counsel for the Respondent: M/s. M. Ramgopal Reddy
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THIS THE SIXTH DAY OF APRIL TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) This is an appeal preferred by the opposite party insurance company against the order of the Dist. Forum directing it pay Rs. 60,847/- together with interest @ 9% p.a., from the date of repudiation till the date of realization.
2) The case of the complainant in brief is that he got his jeep insured with the appellant insurance company covering the period from 31.10.2004 to 30.10.2005 for Rs. 3,75,000/-. While so, on 29.10.2005 his driver who drove the vehicle while proceeding from Galiveedu to Kadapa he lost control of the jeep due to rain fall and the jeep was turned turtle. The vehicle was damaged. On report the police registered a case and the driver was sentenced to pay a fine of Rs. 500/- u/s 177 of M.V. Act. On intimation the insurance company appointed a surveyor who visited the scene of offence and noted the damages of the vehicle. He got it repaired at an automobile workshop at Kadapa by spending Rs. 60,847/-. When he claimed the amount the insurance company repudiated the claim mentioning that the driver was having only LMV driving licence while the vehicle insured was a transport vehicle a violation of policy condition. Alleging that repudiation was unjust he filed the complaint to direct the insurance company to pay Rs. 60,847/- with interest @ 18% p.a., from 25.1.2006 till the date of realization together with compensation of Rs. 20,000/- and costs.
3) The insurance company resisted the case. It denied the averments made by the complainant. However it admitted issuance of policy covering the risk of the vehicle. The allegation that he had spent Rs. 60,847/- for repairs of the jeep is not true. They are all fabricated bills. The surveyor had assessed the damage at Rs. 13,350/-. At any rate, the driver who drove the vehicle had only LMV Non-transport driving license whereas the vehicle is a transport passenger carrying commercial vehicle. He needs LMV transport license to drive his vehicle. Since there is violation of terms of the policy the complainant was not entitled to any compensation 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 to A4 marked, while the appellant insurance company filed the affidavit evidence of its Asst. Divisional Manager and filed Ex. B1 copy of driving license of the driver.
5) The Dist. Forum after considering the evidence placed on record opined that the gross weight of the vehicle is 2,480 Kgs and unladen weight is 1,720 Kgs therefore it is light transport vehicle. Relying a decision of Supreme Court Ashok Gangadhar Vs. Oriental Insurance Company Ltd. Reported in 2000 (1) CCC 63 (SC) it opined that repudiation was unjust. Except assessing the damage at Rs. 13,350/- the appellant insurance company could not disprove bills Ex. A3 spent towards repairs at Rs. 60,847/- directed the insurance company to pay the said amount with interest @ 9% p.a., from the date of repudiation viz., 25.1.2006 till the date of realization together with costs of Rs. 1,000/-.
6) Aggrieved by the said decision, the appellant insurance company preferred the appeal contending hat the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that the driver was not having valid and effective driving license to drive the vehicle. In National Insurance Company Vs. Lakshmi Narain Dutt reported in 2007 (4) Scale the Hon’ble Supreme Court opined that the decision relied had no application to own damage cases. Since the driver was not having valid and effective driving license to drive the insured’s vehicle, there was no liability on its part to pay any amount much less the amount awarded by the Dist. Forum.
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 complainant got AP 03 U 5425 Mahindra jeep a commercial vehicle insured with the appellant insurance company for Rs. 3,75,000/- evidenced under Ex. A1. The insurance policy mentions that it is a passengers carrying commercial vehicle. The policy stipulates that the driver authorized to driver the vehicle should hold an effective and valid driving license at the time of accident, lest it would not be liable to compensate. Evidently the vehicle met with accident on 29.10.2005 evidenced under Ex. A2 certificate issued by inspector of police.
9) The complainant asserts that a surveyor was appointed by the insurance company who in turn verified the damages, and after informing him he spent Rs. 60,847/- and got it repaired evidenced under Ex. A3 bills. The insurance company while admitting that it had appointed a surveyor who assessed the damages at Rs. 13,350/-, however noticed that the driver who drove the vehicle at the time of accident was not having valid and effective driving license. For the reasons best known the insurance company did not file surveyor’s report. There is no proof that the complainant did not spend Rs. 60,847/- covered under the bills. Except alleging that they are fake bills, no evidence whatsoever was filed. Non-filing of the surveyor’s report would entail an adverse inference against the case of the insurance company.
10) The important contention that has been taken by the insurance company is that the driver who drove the vehicle at the time of accident had no valid and effective driving license and therefore it was a violation of policy terms and therefore the complainant was not entitled to any compensation. To prove the said fact it filed Ex. B1 driving license of the driver obtained from Addl. RTA Authoritiy, Madanapalli. The certificate shows that he was authorized to drive Light Motor Vehicle (LMV). It was issued on 22.11.2000.
11) The vehicle involved in the accident was a jeep Mahindra Max TX made by Mahindra & Mahindra. The insurance policy was given as passenger carrying commercial vehicle. The driver was having only LMV license. The Dist. Forum has relied a decision in Ashok Gangadhar Maratha Vs. Oriental Insurance Company Ltd. Reported in III (1999) CPJ 5 (SC) and opined that it was a Light Motor Vehicle. and its un-laden weight is 2,270 Kgs., and the driver of the vehicle was having valid and effective LMV license, and therefore liable to pay compensation.
12) At the outset, we may state that In New India Assurance Company Ltd. Vs. Prabhulal reported in 1 (2008) CPJ 1 (SC). the Supreme Court observed :
“In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.
We may state that the Supreme Court had relied two more decisions in the above Prabhulal’s case which we excerpt.
In the matter of Nasir Ahmed (SLP No. 7618 of 2005), the vehicle was a luxury taxi passenger carrying commercial vehicle. There also the driving licence issued in favour of the driver was to ply Light Motor Vehicle (LMV) and hence the driver could not have driven the vehicle in question. In that case too, the licence was renewed for a period of twenty years i.e. from February 5, 2000 to February 4, 2020. Again, there was no endorsement as required by Section 3 of the Act. A specific plea was taken by the Insurance Company but the Authorities held the Insurance Company liable which could not have been done. The reasoning and conclusion arrived at by us in the matter of Prabhu Lal (SLP No. 7370 of 2004) would apply to the case of Nasir Ahmed. That appeal is, therefore, allowed.
In Chandra Prakash Saxena (SLP No. 17794 of 2004), the vehicle involved in accident was a Jeep Commander made by Mahindra & Mahindra, a passenger carrying commercial vehicle, and in view of the fact that the driver was holding licence to drive Light Motor Vehicle (LMV), he could not have plied the vehicle in question. For the reasons recorded hereinabove in the main matter of Prabhu Lal i.e. SLP(C) No. 7370 of 2004, the Insurance Company could not have been held liable and that appeal also deserves to be allowed.
13) Equally the vehicle is a transport vehicle as defined u/s 2(47) of the M.V. Act and since the driver of the vehicle was holding a driving license issued in Form No. 6 to drive LMV only, he was not authorized to drive the vehicle as there was no endorsement on his driving license authorizing him to drive such vehicle.
14) The above decisions are applicable to the facts of the present case. Since the driver was not having valid driving license and the vehicle being passenger carrying commercial vehicle, undoubtedly the complainant was not entitled to any compensation.
15) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 06. 04. 2010.
*pnr
“UP LOAD – O.K.”
