AT HYDERABAD.

F.A. 1543/2006 against C.D. 579/2005 , Dist. Forum-I, Hyderabad

Between:

The Branch Manager

The National Insurance Company Ltd.,

15-1-503, Ashok Market

Feelkhana, Osmangung

Hyderabad-500 012.                                   ***                         Appellant/                                                                                                            Opposite Party                                                                         And

S. Venkatanarasaiah

S/o. Pochaiah, Age: 56 years

Employee, R/o. Railway Quarter

No. 803/2, North Lalaguda

Secunderabad.                                           ***                         Respondent/

                                                                                                Complainant.

Counsel for the Appellant:                          Mr Kota Subba Rao

Counsel for the Respondent:                      M/s. Dwarakanath Patnaik

QUORUM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT 

                                                          &

                                    SMT. M. SHREESHA, MEMBER

FRIDAY, THE  THIRTY FIRST  DAY OF OCTOBER TWO THOUSAND EIGHT

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          This is an appeal preferred by the insurance company against the order of the Dist. Forum, Hyderabad  in directing it to pay Rs. 65,000/- together with costs of Rs. 2,000/-.

The case of the complainant in brief is that  he is a registered owner of  auto rickshaw  (auto)  covered by an insurance policy Dt. 21.8.2003 for Rs. 49,000/-  valid  up to  20.8.2004.   While so on 2.1.2004 at about 3.00 p.m. when the driver parked the auto in front of  Indira Tea  Stall at  Yousufen Darga X Roads, Nampally, Hyderabad  and went for lunch and when he returned he found that  somebody had committed theft  of auto.  On  report the police registered  a case in Crime No. 2/2004 u/s  379 of  IPC.  Later he requested the  insurance company to pay the amount as per the invoice.  He issued  legal notice  claiming cost of auto of Rs. 98,000/- for which the insurance repudiated the claim.   Therefore he claimed Rs. 98,000/-  with interest @ 24% p.a., together with costs.

          The insurance company resisted the case.  It alleged that the driver Anand Khade  was not having valid driving licence.  It was not aware of the theft  that was taken place as alleged.   As per the terms of policy  it was not liable,  if the driver was not having  valid driving licence.  Therefore, it prayed for dismissal of the complaint. 

          The complainant in proof of his case filed his affidavit evidence and Exs. A1 to A8, while the respondent filed Exs. B1 to B8.

          The Dist. Forum after considering the evidence placed on record  opined that value  of auto was  Rs. 65,000/- evidenced under Ex. A8 invoice and therefore  granted Rs. 65,000/- together with costs of Rs. 2,000/-. 

          Aggrieved by the said decision, the insurance company preferred this appeal contending that the policy was issued for Rs. 49,000/- and the Dist. Forum could not have granted Rs. 65,000/-.   It was not liable to pay any amount other the amount covered under the terms of the policy.

It is an undisputed fact that the auto belonged to the complainant was insured by the appellant for Rs. 49,000/- evidenced under insurance policy Ex. B7.  The auto was manufactured in the year 2001 and the policy was issued covering the period from 21.8.2003 to 20.8.2004.  The said vehicle was lost when it was parked at a Tea Stall at Nampally, Hyderabad  on 2.1.2004.   On the report of the driver,  the police registered a case in Crime No. 2/2004 of 379 IPC  which later was investigated  and a  final report Ex. A4 was filed before the learned Magistrate  who  referred the matter as undetected.

          When the complainant made the claim it was repudiated  on the ground that the driver who drove the vehicle was not having requisite driving licence.  In other words that the driving licence which was issued to the driver was to drive a transport vehicle.  Since he was not having requisite driving licence, the same was  negatived

. 

At the out set, we may state that  it is not a case where the vehicle had met  with an accident, where the question of  validity of driving licence would have been  gone into. When the vehicle was parked, it was stolen by an un-known person.

Recently, the Supreme Court  in  National Insurance Company Ltd., Vs. Nitin Khandelwal reported in IV (2008)  CPJ 1 (SC) observed:

  "9. 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 Vehicle 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.”

.   In the case in hand, the vehicle has been snatched or stolen.   In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the  appellant Insurance Company ought to have settled the claim on non-standard basis.   The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

This decision squarely applies to the facts of the present case.  Since the repudiation was unjust, undoubtedly, the complainant  is entitled to the amount.  However the policy was issued for an amount of Rs. 49,000/-.  The complainant having taken the policy for the said amount, could not have claimed more than  the amount  for which it was insured.   Apart from it, the auto was manufactured in the year 2001 while the theft was in the year 2004, three years after its purchase.  Therefore, granting of entire amount towards cost of auto would not hold good.  What all the complainant is entitled to is the amount for which the policy was taken.  Since the insurance company  has unjustly denied  payment it was liable to pay  the policy amount with interest @ 9% p.a., from the date of complaint till realization.   

In the result the appeal is allowed in part by setting aside the order of the Dist. Forum. Consequently, the complaint is partly allowed granting Rs. 49,000/- with interest @ 9% p.a., from the date of complaint  i.e., 23.06.2005 till the date of realization together with costs of Rs. 2,000/- awarded by the Dist. Forum.   However, no costs in the appeal.   Whatever the amount that was withdrawn by the complainant by virtue of interim order, the same shall be deducted from out of the said amount.   Time for compliance four weeks.

PRESIDENT                                               LADY MEMBER

                              Dt. 31. 10. 2008.