KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 338/2001
JUDGMENT 08..03..2011
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
New India Assurance Co., : APPELLANT
Thrissur, Rep. by its Deputy Manager,
Regional Office, Ernakulam.
(By Adv. George Cherian)
Vs.
Jayasree Mohandas, : RESPONDENT
West Fort Hospital,
Thrissur.
(By Adv.N.K.Unnikrishnan)
JUDGMENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
The order dated 14.12.2000 of CDRF, Thrissur in OP.962/99 is being assailed in this appeal by the opposite party who is under directions to pay to the complainant a sum of Rs.68717/- with interest at 12% per annum from 29/6/98 till payment with cost of Rs.500/-.
2. The complainant has approached the Forum stating that she is the owner of an ambulance van bearing No.KL-8C/7644 which was used for the service of dead and injured. The vehicle met with an accident on 29.6.98 by skidding and hitting on a compound wall causing collapse of the said compound wall and major damage to the ambulance van. It is her case that though the vehicle had an insurance coverage and though the claim petition was filed, the opposite party repudiated the claim stating that at the time of accident the driver did not have a badge to drive a commercial vehicle. The complainant has also stated that she has produced the driving license of the driver of the ambulance van with relevant papers and the opposite party demanded the badge of the driver only after a period of 9 months by which time the driver had left the services of the complainant and went abroad. Alleging deficiency in service on the side of the opposite party the complaint was filed praying for directions to the opposite party to pay Rs.1,11,240/- towards expenses incurred for the repairs with 12% interest from the date of complaint along with compensation of Rs.50000/- and cost of Rs.500/-.
3. The opposite party resisted the complaint by filing version wherein it was submitted that the vehicle of the complainant was a commercial vehicle which was used as the ambulance van and at the time of accident, the driver of the vehicle had no valid license to drive a commercial vehicle. However the opposite party admitted that the vehicle had an insurance coverage at the time of accident and on getting information a surveyor was deputed to ascertain the loss and net liability was fixed at Rs.68717/- by the surveyor. The opposite party took the firm stand that the driver of the vehicle had no badge to drive a commercial vehicle and as such the repudiation was just and proper.
4. The evidence consisted of Exts.P1 to P15 and Exts.R1 to R4.
5. Heard both sides. The learned counsel for the appellant/ opposite party vehemently argued before us that the Forum below did not appreciate the facts of the case in its correct perspective and hence the order is liable to be setaside. It is his very case that the vehicle was insured as commercial vehicle as can been seen from Ext.R4. He has also submitted before us that the complainant was using the vehicle for commercial purpose and the vehicle was included in the category of transport vehicle and as such the driver ought to have a badge to drive the said vehicle. It is also his case that only on production of the valid license, the opposite parties can entertain the claim and there was no deficiency in service on the side of the opposite party. He has also relied on the decision of the Honourable Supreme Court in New India Assurance Co. Ltd. Vs. Prabhulal [(2008) ACJ 627] and also of decisions of the Hon’ble National Commission reported in 2010 (4) CPR 119 (NC), 2010 (4) CPR 41(NC) and 2010 (4 )CPR 82 (NC) wherein it is held that driving by unauthorized person is fundamental breach of policy conditions and the driving license without badge does not permit a person to drive a transport vehicle. Thus he canvassed for the position that the action of the opposite party can only be justified.
6. On the other hand the learned counsel who appeared for the respondent/complainant submitted before us that the opposite party had committed deficiency in service as the opposite party demanded for the badge of the driver only after 9 months from the date of filing the claim petition by which time the driver had left the service of the complainant and went abroad. She has submitted that the opposite party ought to have asked for the badge as soon as the claim petition was filed. The delay in processing the claim and a request regarding the badge of the driver are pointed out to be deficiency in service by the learned counsel and argued before us that the claim made by the complainant is to be allowed in toto or atleast the claim should be allowed on non standard basis. She had relied on the decision of the Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.(decision dated 25.3.2010 in civil appeal No.2703/2010) and argued before us that the opposite party is to be directed to consider the claim of the complainant atleast on non standard basis.
7. On hearing the counsel for the appellant, respondent and also on perusing the records we find that the complainant was the owner of the ambulance van bearing Reg.No.KL-8C/7644 and the same had an insurance with the opposite party at the time of the accident. It is the case of the complainant that she had presented the bills and vouchers amounting to Rs.1,11,240/- and also that the vehicle was used for the purpose of transporting the dead and injured. However it is seen admitted that the vehicle was an ambulance van. The opposite party/appellant has argued before us that the vehicle was insured as a commercial vehicle and the vehicle should be driven by a person who was having a badge and it should be effective. On a perusal of Ext.R4 we find that the insurance has been given for the category of commercial vehicle and the complainant has no case that insurance was taken not for commercial vehicle. It is also to be found that the Hon’ble Supreme court in New India Assurance Co. Vs Prabhulal (cited supra) has held that insurance Co. can be justified in repudiating the claim on the ground that the person who was driving the vehicle at the time of the accident had no valid license. In the instant case it is seen that the ambulance van was a commercial vehicle and the person who had driven the said kind of vehicle must hold a license with endorsement entitling him to drive the said type of vehicle. We find that the complainant has not produced the license of the driver having any endorsement for driving such a vehicle. Hon’ble National Commission has also held that driving by an unauthorized person is fundamental breach of policy and the repudiation can only be justified.
7. The counsel for the respondent has argued at length for a direction to the opposite party to consider the claim on non standard basis on the strength of the decision of the Supreme Court in Amalendu Sahoo vs Oriental Insurance Co.. On a perusal of the said decision we find that the said case relates to the use of a vehicle for hiring and accident occurred while the vehicle was used for hiring purposes. However there is no case that the driver of the vehicle had no effective valid license at the time of the accident. The Hon’ble Supreme Court in New India Assurance Co.Ltd. vs. Prabhulal (cited Supra) and the Hon’ble National Commission in M/s M.M.Jaffer and Co. Vs. New India Assurance Co. [2010)(4)CPR 118 NC] have held that driving by a person who has no valid driving license is a fundamental breach of policy. In the instant case the violation is a fundamental one and the decision of the Supreme Court in Amalendu Sahoo’s case can not be made applicable. We find that the complainant ought to have produced the valid license of the driver at the time of presenting the claim petition. We also find that the delay in asking for the ‘badge’ of the driver will not improve the case of the complainant as the complainant has no case that the driver had the badge at the time of accident. In the said circumstance we are of the view that the action of the opposite party in repudiating the claim can only be justified. Hence the order of the Forum below in directing the opposite party to pay the amount of Rs.68717/- with interest and cost is only to be setaside and we do so accordingly.
In the result the appeal is allowed. The order of the Forum below in OP.962/99 is set aside. In the facts and circumstances of the present appeal, parties are directed to suffer their respective costs.
S.CHANDRAMOHAN NAIR : MEMBER
JUSTICE K.R.UDAYABHANU : PRESIDENT
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