BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.1063/2006 against C.D.No.173/2005, District Consumer Forum, Kadapa.
Between:
A.Rangareddy, S/o.Chinna Rangareddy,
aged about 50 years, Hindu,
Owner of Mini Goods Vehicle .
Bearing No.A.P.04 U 4615 ,
R/o.Kothapalli Village,
V.N.Palli Mandal, Kadapa Dist. … Appellant/
Complainant And
National Insurance Company Ltd.,
Rep. by its Branch Manager, Branch Office,
Sundaracharulu Street, Proddutur,
Kadapa Dist. … Respondent/
Opp.party
Counsel for the Appellant : Sri G.Allabakash
Counsel for the Respondents : Sri G.Gajendra
QUORAM:SMT.M.SHREESHA ,HON’BLE MEMBER
AND
SRI K.SATYANAND , HON’BLE MEMBER
TUESDAY, THE THIRTIETH DAY OF JUNE,
TWO THOUAND NINE.
Oral Order : ( Per Smt. M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.173/2005 on the file of District Forum, Kadapa, the complainant preferred this appeal.
The brief facts as set out in the case are that the complainant is a owner of one mini lorry which was insured with the opposite party company by paying a premium of Rs.12,938/- out of which a sum of Rs.8,543.70 ps was allotted under the head of own damage to the said lorry to an extent of Rs.4,95,000/-. The policy is for a period of one year from 30.8.2003 to 29.8.2004. On 30.3.2004 the driver took the said lorry with a load of bananas and at about 3.10 a.m. another lorry came across the road at rash and negligent manner at high speed dashed against this lorry which was going in normal speed on the left side of the road. The diesel tank of the said lorry was broken and caught fire and the lorry driver Mr.Sambasivudu and the entire lorry load was burnt to ashes. The complainant submits that even the R.C. permit and Driving license of the said driver were also burnt. The police case was registered and the complainant submits that deceased driver did not commit any negligence and it is only because of the negligence of the other lorry the accident occurred. On the instructions of opposite party , the complainant approached Sri Mahalakshmi Auto Motives , Kadapa on 5.4.2004 who had estimated the cost of repairs at Rs.7,03,982/- and the complainant made a claim to the opposite party to pay Rs.4,95,000/- as agreed under the contract. On 25.9.2004 the complainant submitted Xerox copy of the policy along with RC permit and Fitness Certificate. The complainant got issued a registered legal notice to the opposite party, but the claim was not settled. It is also stated by the complainant that the Asst. Commissioner for Workmen Compensation paid compensation to the parents of the deceased lorry driver and that the opposite party now cannot challenge any violation of policy since the order passed by the Asst.Commissioner is final and the opposite party did not prefer any appeal. The complainant filed this complaint before the District Forum seeking direction to the opposite parties to pay Rs.4,95,000/- with interest, compensation and costs.
Opposite party filed counter admitting to the policy but stating that the said driver did not possess any driving license to drive the vehicle and that their surveyor has quantified the net loss assessment at Rs.2,63,754/- on repair basis method and he also quantified an amount of Rs.1,67,735-89 ps. on cash loss basis. The complainant submitted a claim form on 7.4.2004 but did not file i the particulars of the driving license and after repeated requests he submitted the driving license and the insurance company appointed one investigator to verify the validity of the driving license with original records at RTA Office, Kadapa and after due enquiry RTA endorsed that driving license was given to one Mr.M.Vasudeva Naidu but not to Sri Sambasivudu ,hence their repudiation is justified.
The District Forum based on the evidence i.e. Exs.A1 to A7 and Exs.B1 to B13 dismissed the complaint.
Aggrieved by the said order complainant preferred this appeal.
The facts not in dispute are that the complainant insured his mini Lorry to the opposite party and paid premium and was allotted Rs.4,95,000/- under the head of own damage covering the period from 30.8.2003 to 29.8.2004. It is also not in dispute that the vehicle met with an accident on 31.3.2004 at 3.10 a.m. and the entire lorry was burnt. It is the complainant’s case that another lorry coming across from the opposite side of the road in a rash and negligent manner dashed the said lorry and the diesel tank was broken and consequently the entire lorry and the driver Sambasivudu were burnt to ashes. The complainant submits that they have submitted the Xerox copies of R.C., Permit and Fitness Certificates along with copies of repair estimates to the opposite party and further submit that the Asst.Commissioner for Workmen Compensation awarded compensation to the parents of the deceased driver. The case of the opposite parties is that their repudiation is justified because the said driver Sambasivudu did not have valid driving license on the date of accident and that their investigation showed that an endorsement made by RTA, Kadapa that the said license did not belong to Driver, Sambasivudu but of M.Vasudeva Naidu and therefore there is violation of policy condition and hence they could not settle the claim. The complainant contends that when the Asst.Commissioner for Workmen Compensation had awarded compensation to the parents of the deceased and the respondent/opposite party deposited the same but at this stage the respondent cannot raise any dispute of violation of policy conditions as they did not challenge the award on any violation of policy. He further contended that the driver was well experienced and the accident occurred not on account of his negligence but due to negligence of the driver of the lorry coming in the opposite direction and therefore the policy cannot be repudiated on the ground that the driver of the said lorry did not have valid driving license and further relied on the decision of the Apex Court in BHAGAVATHI PRASAD vs. DELHI STATE MUNICIPAL DEVELOPMENT CORPORATION LTD. reported in AIR 1990 SC 371. But the facts in the instant case are different in the sense that the claim is of ‘own damage’ whereas the claim in the cited judgement is with respect to third party claims. Photo copy of the driving license filed by the complainant shows that it is valid from 16.5.2000 to 15.5.2020. The certificate issued by the Additional Licensing Authority, Kadapa i.e. Ex.B7 shows that the license was issued to Sri Vasudeva Naidu and not to the said driver Sambasivudu. While so the report of the Circle Inspector of Police , Devenahalli Circle, Bangalore clearly states that the said driver Sambasivudu was not able to escape from the fire and sustained fatal injuries and that the driver of the lorry which was coming on opposite direction was responsible for the said accident for driving in rash and negligent manner. Hence we are of the opinion that the judgement of the Apex Court reported in 2008 CTJ 680 (Supreme Court) (CP) in NATIONAL INSURANCE CO. LTD. vs. NITIN KHANDELWAL can be applied to the present case, wherein Apex Court quoted from JITENDRA KUMAR v. ORIENTAL INSURANCE CO.LTD. and another reported in 2003 CTJ 649 (SC) (CP) in paras 9 and 10 which is as follows:
“The question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the company solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question , in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act,1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(1)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver
It is the case of the parties that the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion, the Insurance Company could not have repudiated the claim of the appellant.”
We also rely on the judgement of the National Commission in NEW INDIA ASSURANCE CO. LTD. vs. JHANKAR SINGH reported in Supreme Court and National Commission on Consumer Protection Law, Volume –III 176 in which non standard claims were dealt with extensively which is as follows:
S.No. Description %age of settlement
1. Under declaration of licensed Deduct 3 years difference in
carrying capacity premium from the amount of
claim or deduct 25% of claim
amount, whichever is higher.
2. Overloading of vehicles beyond Pay claim not exceeding 75% of
Licensed carry- admissible claiming capacity.
3. Any other breach of warranty Pay upto 75% of admissible
condition of policy including claim.
limitation as to use.
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From the afore mentioned judgements it is quite clear that the facts in the instant case are applicable since it is not in dispute herein that the accident was caused because of the rash and negligent driving of the opposite side lorry and has nothing to do with the negligence of the said driver. Therefore the insurance company cannot repudiate the claim in toto and we are of the considered view that keeping in view the breach of contract, the complainant is entitled to only 75% of the amount which the surveyor assessed on net loss assessment i.e. 75% of Rs.2,63,754.20 ps. (rounded off to Rs.2,63,755/-) together with interest at 9% p.a. from the date of repudiation till the date of realization together with costs of Rs.3,000/-.
In the result this appeal is allowed. Order of the District Forum is set aside directing the respondent/opposite party to pay 75% of Rs.2,63,755/- with interest @ 9% p.a. from the date of repudiation till the date of realization together with costs of Rs.3000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.30.6.2009
