F.A. 1357/2007   against C.C.  73/2006,  Dist. Forum, Nellore      

Between:

The  Divisional Manager

National Insurance Company Ltd.

Divisional Office-III, Second Floor

751, Annasalai,

Chennai-600 002.                                       ***                           Appellant/

          .                                                                                       O.P.

                                                                   And

N. Vijay Kumar, S/o. Late Satyanarayana

Age: 47 years,  109,

Veerapandyan Nagar

4^th West Street, Victoria  Flats

MMDA Colony,  Chennai-94.                      ***                         Respondent/

                                                                                                Complainant

Counsel for the Appellant:                          M/s.  Katta Laxmi Prasad

Counsel for the Respondent:                       M/s.  V.G.S. Rao.

CORAM:

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

&

                                   SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE TWENTY SEVENTH DAY OF  JULY  TWO THOUSAND TEN

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 pay Rs. 2,07,500/-  together with interest   and costs.

2)                The case of the complainant in brief is that   he got his  Eicher goods carrying vehicle  insured with the appellant insurance company  covering the period from 01.06.2005  to 31.05.2006  for Rs. 6,84,000/-.    While so, on  30. 6. 2005   it met with an accident.  The vehicle was damaged.    On a  report the police  registered a case   in Crime No. 83/2005 u/s  304A & 338 of IPC.   When the insurance company was  informed, it  appointed a surveyor who in turn conducted survey.  In the meantime, on instructions  he got his vehicle repaired by Hex Mobiles Pvt. Ltd.  spending Rs. 2,09,000/- When he claimed the amount the insurance company repudiated the claim   on the ground that  the driver was not having valid and  effective driving license to drive the vehicle.    Due to delay in  settlement of claim he sustained  loss for  255 days.   Therefore he claimed  Rs. 2,09,000/-  with interest @ 9% p.a.,  from 13.3.2006  till the date of realization together with damages of Rs. 2,45,000/- and costs.

3)                The insurance company resisted the case.    While denying each and every allegation made in the complaint, however it admitted  that the policy was issued  in favour of the complainant.    After it met with accident  it had appointed a surveyor.  On  investigation it was found that the driver   M. Sundar  was  holding  Driving License  (DL)  valid from 7.12.2004 to 12.12.2007  authorized to drive  LMV transport  vehicles.    The vehicle of the complainant comes under  Medium Motor Vehicle (MMV).  Its gross weight being  9500 kgs.   The weight of LMV  should be less than  7500 kgs.    Since the driver was not having valid and effective DL   the claim was repudiated by its letter  dt.  6.2.2006.    The surveyor estimated the loss at Rs. 1,81,333.37 ps.    The complainant was not entitled to any loss of income and therefore prayed for dismissal of the complaint with costs. 

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked, while the appellant insurance company filed  Exs. B1  to B6. 

5)                The Dist. Forum after considering the evidence placed on record opined that  the appellant failed to place sufficient material to substantiate  that there was no valid  DL to drive the vehicle in question and therefore  they were  liable to pay  the amount spent by  him towards repair of the vehicle viz., Rs. 2,07,500/- and was directed to pay  interest @ 9% p.a., from the date of repudiation viz., 6.2.2006 till the date of realization together with costs of  Rs. 1,000/-.    The claim for loss of income was rejected.

6)                Aggrieved by the said decision, the appellant insurance company preferred the appeal contending that the Dist.  Forum did not appreciate either  facts  or law in correct perspective.    It ought to have seen that  when the driver was not having valid and effective driving license  to drive  the   vehicle, no liability can be fastened.    Despite production of license  the Dist. Forum still held  that  it could not prove contrary to the record.    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   complainant got   his Eicher  Goods Carrying  Public Carrier insured with the appellant insurance company for Rs. 6,84,000/- evidenced under Ex. B1.   The policy stipulates that  the driver authorized to driver the vehicle  should hold an effective and valid driving license at the time of accident, lest it would  not be liable to compensate.    Evidently the vehicle met with accident on  30.6.2005   evidenced under Ex. A3  FIR,  Ex. A4  Motor Vehicle Inspector Report. 

9)                The complainant asserts that a surveyor was appointed by the insurance company  who in turn verified  the  damages, and after informing him he spent Rs. 2,09,000/-  and got it repaired  with M/s.  Hex Mobiles Pvt. Ltd. evidenced under  Ex. A1  & A6 receipts.    The insurance company while admitting that it had appointed a surveyor  who assessed  the damages at Rs. 1,81,333.37 however noticed   that the driver who drove the vehicle  at the time of accident  was not having valid and effective driving license. 

10)              The  important contention that has been taken by the insurance company is that  the driver who drove the vehicle at the time of accident  had no valid and effective driving license  and therefore  it was a violation of policy terms,  and therefore  the  complainant  was  not entitled to any compensation.  

To prove the said fact  it filed Ex. B2 driving license of the driver.   The certificate shows that  he was authorized to drive  Light Motor Vehicle (LMV) Transport.  It was issued on 28.10.2004.   The vehicle involved in the accident was an Eicher a medium motor vehicle, gross weight being 9500 Kgs.  The insurance policy was given  for Goods Carrying  Public Carrier.    The driver was having only LMV license. 

11)               At the outset, we may state that  In  New India  Assurance Company Ltd.  Vs. Prabhulal reported in 1 (2008)  CPJ 1 (SC).  the Supreme Court observed :

“In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.

We may state that  the Supreme Court had relied two more decisions  in  the above Prabhulal’s case which we excerpt.

 In the matter of Nasir Ahmed (SLP No. 7618 of 2005), the vehicle was a luxury taxi passenger carrying commercial vehicle. There also the driving licence issued in favour of the driver was to ply Light Motor Vehicle (LMV) and hence the driver could not have driven the vehicle in question. In that case too, the licence was renewed for a period of twenty years i.e. from February 5, 2000 to February 4, 2020. Again, there was no endorsement as required by Section 3 of the Act. A specific plea was taken by the Insurance Company but the Authorities held the Insurance Company liable which could not have been done. The reasoning and conclusion arrived at by us in the matter of Prabhu Lal (SLP No. 7370 of 2004) would apply to the case of Nasir Ahmed. That appeal is, therefore, allowed.

In Chandra Prakash Saxena (SLP No. 17794 of 2004), the vehicle involved in accident was a Jeep Commander made by Mahindra & Mahindra, a passenger carrying commercial vehicle, and in view of the fact that the driver was holding licence to drive Light Motor Vehicle (LMV), he could not have plied the vehicle in question. For the reasons recorded hereinabove in the main matter of Prabhu Lal i.e. SLP(C) No. 7370 of 2004, the Insurance Company could not have been held liable and that appeal also deserves to be allowed.

12)              Coming to the facts  the vehicle is a  MMV Goods Carrier and since the driver of the vehicle was holding a driving license  to drive LMV only,  he was not authorized to drive MMV  Goods Carrier  as there was no endorsement  on his driving license  authorizing him to drive such vehicle. 

13)              The above decisions are  applicable to the facts of the present case.    Since the driver was not having valid driving license  and the vehicle being, MMV  Goods Carrier  undoubtedly the complainant was not entitled to any compensation. 

14)              In the result the appeal is allowed setting aside the order of the Dist. Forum.  Consequently the complaint is dismissed.   However, no costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  27.  07.  2010.

*pnr

“UP LOAD – O.K.”