F.A. 1405/2007  against C.C. 166/2006,  Dist. Forum, Vijayawada.   

Between:

United India Insurance Company Ltd.

Rep. by its Divisional Manager

Divisional Office-1

R.R. Appa Rao Street

P.B. No. 50

Vijayawada-1.                                             ***                           Appellant/

            Opposite Party       

                                                                    And

T. Krishna Kumari

W/o. Late Lakshmana Rao

D.No. 30-20-1/10,

Kottilingam Street

Seetharamapuram

Vijayawada.                                                 ***                         Respondent/

Complainant

Counsel for the  Appellant:                         Mr. N. Mohana Krishna

Counsel for the Respondent:                       Served.

CORAM:

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

                                       &

                 SRI R. L. NARASIMHA RAO, MEMBER

WEDNESDAY, THIS THE THIRTIETH DAY OF DECEMBER TWO THOUSAND NINE

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 to pay the amount covered under the policy together with interest and costs.

2)                The case of the complainant in  brief  is that  she is the wife of Late  Thotakura Lakshmana Rao.  He insured his LML Scooter with the appellant insurance company for Rs. 1 lakh for the repeated coverage from 30.4.2005  to 29.4.2006.  While so  on 23.10.2005  at about 9.00 p.m.  when he was proceeding on his scooter  the driver of  the  lorry bearing No.  TCS 5774 drove the lorry in a rash and negligent manner dashed against his husband as a result of which  he sustained injuries and died on the spot.   The police registered a case in Crime No. 308/2005  u/s 304-A  IPC.   When she made  the claim it was repudiated on the ground that her husband was not having effective driving license.    The authorized mechanic assessed the damages at Rs. 9,756/- which she was entitled to along with the amount covered under the policy.  Therefore she claimed Rs. 1,09,756/- together with interest and costs.

3)                The insurance company resisted the case.   While putting the complainant to prove   that she is the wife of the deceased and that  he died in the accident due to rash and negligent driving of a lorry driver, however admitted that it had issued the policy covering the risk of the owner of the vehicle.   On receipt of claim,  license of the deceased was verified  and the Licensing  Authority  Krishna at Vijayawada informed stating that his driving license  was expired on  23.2.1999.  The deceased  died 7  years  after the expiry of the  driving license.  Evidently, he was not holding  effective driving license  at the time of accident.   It is in violation of  Regulation 36(A) of  India Motor Tariff General  Regulations  which mandates the owner/driver of the vehicle  to hold effective and valid driving license.   Since the very assured who was involved in the  accident was not having valid driving license   it was not liable to pay any compensation.  Therefore, it prayed that the complaint be dismissed. 

4)                The complainant in proof of her case filed her affidavit evidence and got  Exs. A1 to A12 marked,  while the insurance company filed the affidavit evidence of   P. Ratna Kumar, Deputy Manager and got Exs. B1 & B2 marked. 

5)                The Dist. Forum after considering the evidence placed on record  opined that  there was negligence  on the part of the insurance company in not verifying the driving license  of the assured at the time of issuance of policy,  and it amounts to deficiency in service.   At any rate it was not a fundamental breach to repudiate the claim, and therefore directed the insurance company to pay Rs. 1 lakh  with interest @ 7.5% p.a., from the date of complaint till the date of realization together with costs of Rs. 1,000/-.

6)                Aggrieved by the said order, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.    The Dist. Forum went wrong in observing that the complainant was entitled to the amount despite the fact that the deceased was not having valid driving license   by the date of accident.   It is  a fundamental breach of conditions.   Therefore, it prayed that the appeal be allowed.

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’s husband  late T. Laxmana Rao  insured his scooter for Rs. 1 lakh evidenced under Ex. A6 covering the period from 30.4.2005 to 29.4.2006.  It is also not in dispute that  the insured died on 23.10.2005  in a motor vehicle accident evidenced under  FIR Ex. A1,  Motor Vehicles Inspector  Accident Report  Ex. A4,  Post-mortem  Report  Ex. A5.   Though it was alleged that the driver of the lorry  who drove the vehicle in a rash and negligent manner  dashed against the insured scooter

on which he was proceeding ahead,  the complainant did not file the charge sheet.  Whatever be the reason, the deceased who was having driving license   to drive the scooter,   had a valid and effective driving license to drive the vehicle from 24.2.1994 to 23.2.1999 evidenced under driving license Ex. A3 filed by the very complainant.    It is not known why the assured did not get it renewed  when he took the policy on  30. 4. 2005.   Despite the fact that the rules stipulate  that he should have a valid and effective driving license during the coverage period, he did not bother to get it renewed.    The fact remains that  by the date of accident  on 23.10.2005,   he was not having valid and effective driving license.  The driving license  he had obtained was expired about  7 years ago on  23.2.1999.    

9)                 It is settled proposition of law  reiterated by the Supreme Court in Oriental Insurance Company Ltd. Vs. Prithviraj reported in I (2008) CPJ 33 (SC)

that non-holding of valid driving license  would not authorize the assured  or his LRs to claim compensation.   It can be termed as  fundamental breach of conditions of the policy.   This is not only contrary to the policy conditions but also violation of  Regulation 36(A) of  India Motor Tariff General  Regulations. 

10)               The only contention that was raised by the complainant was that it is the duty of the insurance company to verify the driving license before issuance of the policy.   It is not known from where the complainant could  state  that the insurance company had to verify the driving license before issuing the policy.   In fact in the very policy there is a mention that if the  insured does not have  valid driving license the insurance company  would not be liable to compensate.   Since it is violation of policy conditions being fundamental in nature, necessarily the insurance company is not liable to pay any compensation.    The order of the Dist. Forum does not sustain.   

11)               In the result the appeal is allowed, consequently the complaint is dismissed.  However, no costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  30.  12.  2009.

*pnr

“ UPLOAD – O.K.”