KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NOS:258/10 & 665/2009

                    COMMON  JUDGMENT DATED:23-07-2010

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                             : MEMBER

APPEAL  NO:258/2010

The Branch Manager,

National Insurance Company Ltd.,                                : APPELLANT

Perumba, Payyannur.P.O, Kannur.

(By Adv:Sri.S.Rajeev)

            Vs.

P.Saseendran,

Pottakulathu House,                                                         : RESPONDENT

Kandoth.P.O, Payyannur.

APPEAL  NO:665/2009

P.Saseendran,

Pottakulathu House,                                                         : APPELLANT

Kandoth.P.O, Payyannur.

(By Adv:Sri.C.P.Peethambaran & R.Suja)

Vs.

The Branch Manager,

National Insurance Company Ltd.,                                : RESPONDENT

Perumba, Payyannur.P.O, Kannur.

(By Adv:Sri.S.Rajeev)

COMMON JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:PRESIDENT

Appellant in Appeal 665/09 is the complainant and appellants in Appeal 258/10 are the opposite parties in CC.139/05 in the file of CDRF, Kannur.  The opposite party/insurance company has been ordered to pay a sum of Rs.5000/- as compensation and Rs.1000/- as cost.

2. It is the case of the complainant that Mini lorry owned by him met with an accident on 18-04-2004 and the vehicle sustained damage.  The claim was repudiated on the ground that the vehicle was driven by the complainant himself and that he had no valid driving license.  It is the case of the complainant that in fact the vehicle was driven by Mr.V.Narayanan.  It is also contended that the complainant was having a valid driving license.  A sum of Rs.1.lakh is claimed for the repair cost of the vehicle.

3. The opposite party/insurer has contended that it was the complainant himself who was driving the vehicle and that he was not having the required badge to drive the commercial vehicle.  The complainant with the connivance of the Sub Inspector of Police made an unsuccessful attempt to get Mr.Narayanan in crime No.248/04 as the complainant was not having effective driving license and badge.  But on the complaint of the local people the Circle Inspector of Police, Payyannur conducted detailed investigation and it was found that Mr.Narayanan was not the driver but the complainant himself was driving the vehicle at the time of the accident.  It was also found that the complainant was not having a valid and effective driving license and badge.  A charge sheet was submitted before the JFCM, Payyannur under sections-279, 338 and 304(A) and under sections-46(1)A and 177 of the MV Act.  The complainant has violated the policy condition and hence the insurer is not liable to compensate the complainant.

4. The evidence adduced consisted of the testimony of PW1, Exts.A1 to A4 and B1 to B3.

5. The Forum has held in favour of the case set up by the complainant on the ground that the complainant was acquitted in the criminal case the judgment of which is marked as Ext.A4.

6. The complainant has also filed A-665/09 claiming enhancement of the amount of compensation.  We find that from Ext.B1 the attested copy of the charge sheet and A4 judgment it can be found that the complainant herein was charge sheeted.  It is seen

from the charge sheet that the vehicle hit a motor cycle and the rider died and the pillion rider sustained fracture.  Opposite parties have also produced a newspaper report wherein it is mentioned that an attempt is being made to substitute another person who is one Narayanan instead of the complainant herein.  Ext.A4 judgment in the criminal case would show that the witnesses did not identify the complainant as a person driving the vehicle.  Ext.B3 extract of the driving license register of the Joint RTO, Thalipparambu would show that he was having driving license to drive light motor vehicles only.  Mini lorry being a commercial vehicle the complainant ought to have necessary badge to drive.   In the absence of the same there is evident policy violation.  It is evident that it was the complainant himself who was driving the vehicle at the time and it has resulted in the death of a person and serious injury to another person.  In the circumstances we find that the Insurance Company is not bound to compensate the complainant.  Hence the Appeal-665/09 is dismissed and Appeal-258/10 is allowed.  The order of the Forum is set aside.

Office will forward the LCR along with the copy of the order to the Forum urgently.

JUSTICE K.R. UDAYABHANU:PRESIDENT

S. CHANDRAMOHAN NAIR : MEMBER

VL.