BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 865 of 2010 against C.C. 125/2009, Dist. Forum, Kadapa
Between:
The Oriental Insurance Company Ltd.
Kadapa Branch
Rep. by its Branch Manager
Rep. by its Authorised Signatory
Regional Office, Hyderabad. *** Appellant/
O.P
And
K. Narasimha Reddy
S/o. K. Lakshmi Reddy
Age: 39 years
D.No. 7/89-B
M. J. Kunta, Kadapa. *** Respondent/
Complainant
Counsel for the Appellant: M/s. S. Agasthya Sarma
Counsel for the Respondent: M/s. R. yogender Singh
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
&
SMT. M.SHREESHA, MEMBER
THURSDAY, NINETEENTH 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 against the order of the Dist. Forum directing it to pay Rs. 9,98,000/- covered under the policy together with compensation and costs of Rs. 1,000/- each.
2) The case of the complainant in brief is that he got insured his 10 wheeler vehicle having national permit for Rs. 10 lakhs covering the period from 13.10.2007 to 12.10.2008. While so the said vehicle met with an accident on 3.7.2008 at Maharasthra while it was on its way to Gujarat. The accident took place due to rash and negligent driving of the truck driver who came in opposite direction collided and dashed against his vehicle due to which it caught fire. The driver who was driving the vehicle died on spot. The other driver gave a report, basing on which the Station House Officer, Dule Police Station registered it as a case in Crime No. 206/2008 u/s 304A, 337 and 338 IPC. When the said fact was intimated, the insurance company unjustly repudiated the claim solely on the ground that the driving license of the driver was not produced. Assailing the repudiation he filed the complaint claiming Rs. 10 lakhs covered under the policy, Rs. 5 lakhs towards loss of income, Rs. 1 lakh towards mental agony and Rs. 5,000/- towards costs.
3) The insurance company resisted the case. While admitting issuance of policy and also the fact that the vehicle met with an accident on 3.7.2008 it alleged that as per the driver’s clause the person driving the vehicle should hold an effective and valid driving license at the time of accident and not disqualified from holding or obtaining such license, among other conditions. The allegation that the driving license of the driver was burnt is false. Non-production of his driving license entails repudiation of the claim. The claim was repudiated by its letter dt. 23.1.2009, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case examined himself as PW1 and examined the co-driver P. Srinivasulu as PW2 and got Exs. A1 to A10 marked while the insurance company filed Exs. B1 to B6.
5) The Dist. Forum after considering the evidence placed on record opined that the vehicle was completely burnt, and in the light of report of very surveyor of the insurance company Ex. B3 a sum of Rs. 9,98,000/- was granted besides compensation and costs of Rs. 1,000/- each.
6) Aggrieved by the said order the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have dismissed the complaint for non-submission of driving license of the deceased driver. He could have obtained a duplicate copy and submitted it in order to claim the amount. It cannot fasten the liability on the insurer. Therefore it prayed for dismissal of the complaint with costs.
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 an owner of public carrier insured his vehicle for Rs. 10 lakhs covering the period from 13.10.2007 to 12.10.2008 vide Ex. A1 copy of policy. It is also not in dispute that the vehicle met with an accident on 3.7.2008 at Maharasthra when it was being driven by one Mallikarjuna when a truck collided with it. As a result the vehicle reduced into ashes. The deceased driver was accompanied by PW2 P. Srinivasulu another driver. The said fact was intimated under Ex. B2 claim form. The death of Mallikarjun was not only mentioned in FIR Ex. A6, but also in inquest report Ex. A8, certificate issued by S.I. of Police under Ex. A6 followed by post-mortem examination report Ex. A9, and death certificate Ex. A4. He died of shock following thermal burns.
9) Though the insurance company did not allege that it has appointed an investigator/surveyor on receipt of claim form Ex. B2 it has filed report of surveyor Ex. B3 without filing the affidavit evidence of any of the officers or that of surveyor. Sri Venkateshwarlu Pinniti, surveyor in his report Ex. B3 made a categorical mention that “driver died on the seat and burnt out with all records inclusive of his license.” He confirmed that driver Mallikarjun was second driver on the seat, while PW2 P. Srinivasulu is the first driver. He made the summary of assessment as under :
Estimated Assessed for
Total cost of parts 17,79,330/- 11,41,955/-
Total labour charges 39,600/- 21,600/-
--------------- ---------------
18,18,930/- 11,63,555/-
==========
Less: Policy excess 2,000/-
Less: Salvage value 1,10,000/-
----------------
Net payable 10,51,555/-
===========
Finally he recommended the cause of accident is in order. Repairs are not economical viewing from any angle. If the insured is paid Rs. 6,98,000/- leaving the wreck to him the insurers liability will greatly reduce. If the wreck is taken from the insured, then the insured may be paid Rs. 9,98,000/- subject to production of driving license particulars.
10) We may state that the complainant as well as insurance company could not obtain driving license particulars of the deceased. It is not as though the complainant did not try or did not make any efforts to provide the driving license particulars of the deceased by mentioning :
“The insured promised me that he will try his best to provide me later, and requested me to wait for some time. The spot report, police panchanama also are not available. However, the branch office could be able to get the police records translated copies along with spot report and sent me on 2.12.2008. The insured had also written me a letter that he could not provide the DL particulars, and requested me to release my report with the available information. Thus the delay took place in releasing my final survey report. I was in touch with the underwriting office till I got the related information through them.”
When both parties are unable to obtain the driving license particulars of the deceased, and in fact other driver who was accompanying the deceased was admittedly having driving license produced it marked as Ex. A10, it could be presumed that the complainant had taken all precautions while entrusting the vehicle to the drivers. There is no mandatory requirement that the owner should have a copy of driving license when the vehicle was entrusted to the driver. This fact could be gathered from the evidence of PW2 Srinivasulu the other driver. When the very surveyor did not bother to find out whether the deceased driver was having driving license by applying to the RTO authorities or some other authority to prove that the deceased was not having driving license, the burden of proof cannot be thrown on the complainant in order to negate the claim. The complainant could not be denied the benefit.
It is not a case where the insurance company could prove that the deceased driver was not having driving license. It is a case where the insurance company could not find out the driving license particulars. Necessarily the benefit of doubt could be given to the complainant, more over in the teeth of entire evidence let-in, in this regard. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
11) In the result the appeal is dismissed with costs computed at Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
19/01/2012
*pnr
UP LOAD – O.K.
