KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 377/11
JUDGMENT DATED 19.11.2011
PRESENT:-
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
APPELLANT
M/s. Reliance General Insurance Co. Ltd.,
Vishnu buildings, K.P. Vallon road, Kadavanthara, Cochin
(Rep. by Adv. Sri. Sreevaraham G. Satheesh)
Vs
RESPONDENT
M.P. Anilkumar,
Anandha bhavan, Adooparambu, `Moovattupuzha.
(Rep. by Adv. Sri. Tom Joseph )
JUDGMENT
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
The appellants are the opposite parties/Insurance Company in C.C. 320/10 in the file of CDRF, Ernakulam. Appellants are under orders to settle the claim of Rs. 1,37,013/- on non standard basis.
It is the case of the complainant that the Tavera vehicle covered by the policy issued by the opposite party met with an accident on 7.11.2009. He had to spent Rs. 53,730/- towards the price of the spare parts and Rs. 50,000/- towards labour charge. The claim was repudiated on the ground that the driver at the time had no valid badge. It is contended that the driver was having valid badge.
The opposite parties have contented that the vehicle was a commercial vehicle being plied as a taxi and the driver was not having a valid badge and hence the opposite parties are not liable.
The evidence adduced consisted of Exts. A1 to A3.
The Forum has relied on the decision in Amalendu Sahu Vs Oriental Insurance Company Ltd, II 2010 CPJ 9(sc) and the decision of this commission in Appeal No. 688/05 wherein it is mentioned that on similar facts this Commission directed to settle the claim on non standard basis.
The counsel for the appellant has pointed out that express rule 6 of the Kerala Motor Vehicle Rules the authorization to drive a transport vehicle can be granted only if he is having one year’s experience in driving a light motor vehicle. The above rule also specifies that in case of autoriksha or motorized cycle riksha such experience of one year is not required. The National Commission in National Insurance Co, Ltd. Vs. Sansar Chand III (2010) CPJ 256(NC) has retreated that settlement of claim on non standard basis can not be made as the disqualification of the driver is a fundamental breach of all the terms and conditions of the Insurance Policy. We find that the decision in Appeal. No. 688/05 dated 30.09.2010 of this Commission is with respect to a Pick Up Autoriksha. As per rule 6 of the Kerala Motor Vehicle’s Rules with respect to “autorikshaw, the requirement of one years experience is not required for issuing badge with respect to autorikshaw. The license of the driver in the present case was issued on 12.3.2009 with respect to light motor vehicle. It is on the same date the endorsement to drive transport vehicle has also been issued vide Ext. A2. Evidently the above endorsement can only be with respect to driving an autorikshaw.
The Supreme Court in New India Insurance Company Ltd. Vs. Prabhu Lal 2008(2) KLT Suppl.366 (SC) has retreated that in case the driver of a transport vehicle having license to ply only light motor vehicle, the owner is not entitled to claim any compensation from the insurer. The counsel for the respondent/complainant has relied on the decision of the High Court of Kerala in the New India Insurance Co. Ltd Vs. Balakrishnan and on 2011(4) KLJ.374, we find that the above was with request to a third party claim and the vehicle involved was an autorikshaw. The above decision has no relevance to the facts of the instant case. Being a fundamental breach we find that in the present case, the insurer is not liable to pay compensation as per the policy as there is violation of the condition of the policy that the driver should be having an effective driving license. Hence the order of the Forum is set aside. The appeal is allowed.
The office is directed to forward the LCR to the Forum along with the copy of this order.
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
