KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.778/03 JUDGMENT DATED.29.02.08
PRESENT:
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SMT.VALSALA SARANGADHARAN : MEMBER
The Manager, Oriental Insurance Co Ltd., Branch Office, Perunna,
Rajeswari Complex, 1st Floor, Changanacherry – Represented by its Divisional Manager, Oriental : APPELLANT Insurance Co Ltd., Divisional Office No.2 St.Mary Villa, Ulloor, Medical College.P.O., Thiruvananthapuram.
(By Adv.M.Nizamudeen) Vs Sajini, W/o. Ismail, Orukonal Veedu, : RESPONDENT Chenkara PO., Pullumedu.
(By Adv.K.Baiju)
JUDGMENT
SMT.VALSALA SARANGADHARAN: MEMBER
The above appeal is preferred from the order dated.14.8.03 passed by the CDRF, Idukki in OP.35/03 which was filed by the respondent herein as complainant against the appellant as opposite party claiming insurance amount with respect to the vehicle insured with the opposite party. The insurance company repudiated the claim made by the complainant. The lower forum accepted the case of the complainant and directed to settle the claim of the complaint within one month on payment of the admissible amount under the policy. Dissatisfied with the impugned order passed by the lower forum the opposite party filed the present appeal. 2. Briefly stated the facts are that the complainant who is the owner of a Mahindra and Mahindra pickup van bearing Registration No.KL-6B2399 insured the same with the opposite party with full coverage up to 2.7.02. On 19.4.02 at about 2.30pm the said vehicle hit on the compound wall on the side of the road and got damaged and the same was repaired after intimating the opposite party, expending Rs.2,01,463/-. The claim made by the complainant was repudiated by the opposite party on 18.10.02 alleging that at the time of accident the driver did not have valid driving license. Alleging deficiency of service the complainant filed complaint before the Forum. 3. The insurance company filed a version contending that in the claim form submitted by the complainant, one Mr.Sajikumar was the driver of the vehicle at the time of accident. But subsequent enquiries revealed that Mr.Ismail was driving the vehicle at the time of accident who was not duly licensed to drive the vehicle. The insurance company, therefore prayed for the dismissal of the complaint. 4. The evidence adduced consisted of testimony of PWs 1 and 2 Exts.P1 to P10 and DW1; Exts.R1 and R2. 5. We heard the counsel for the appellant/opposite party and respondent/complainant and gone through the records. During the course of arguments the counsel for the appellant has reiterated the grounds urged in the appeal memorandum. He has also relied on the decisions reported in National Insurance Company Vs.Kusum Rai II (2006) CPJ 8(SC), National Insurance Company Ltd Vs Laxmi Narain Dhut III 2007 CPJ 13 (SC), Abrar Ahmed Ansari Vs New India Assurance Company Ltd and another I (2007) CPJ 288 (NC). In the above decisions it was held that the absence of authorization ie; badge to drive commercial vehicle is sufficient to dishonour the liability under the policy. 6. The learned counsel for the complainant/respondent cited the decision, in National Insurance Company Vs Swaran Singh 2004 (3) SSC 297. This case related to third party claims and not applicable here. 7. The main question to be considered is whether the insurance company was deficient in rendering service and wrongly disallowed the claim of the complainant. The case of the insurance company, was that the vehicle in question at the time of accident, was driven by one Mr.Ismail, who is a close relative of the complainant. He was possessing licence to drive LMV and not having badge. 8. After considering the rival contentions of the parties and referring the case law on the point we are of the view that the complainant is not entitled to the policy amount. It was proved that at the time of accident, Ismail was plying the vehicle in question and not Sajikumar. The fact that the insured vehicle was driven by Ismail is also admitted by the complainant in her rejoinder. The driver was having the valid driving license to drive Light Motor Vehicle and he could not have driven the transport vehicle. 9. Here, the vehicle of the complainant which met with an accident was a transport vehicle. Since the driver was holding a driving licence to drive Light Motor Vehicle only, he was not authorized to drive transport vehicle as there was no endorsement in his driving license authorizing to drive transport vehicle. He could not have driven Mahindra and Mahindra Pick-up van and the insurance company could not be made liable to pay compensation because the driver did not have valid license at the time of accident. We find considerable force in the submission of the learned counsel for the insurance company on that point and are inclined to uphold the same. 10. For the aforementioned reasons we are of the view that the conclusion arrived by the District Forum is wrong and the impugned order is liable to be set aside. In the result the appeal is allowed and the order passed by the forum is set aside. In the facts and circumstances of the case the parties of this appeal are directed to suffer their respective costs. VALSALA SARANGADHARAN: MEMBER JUSTICE K.R.UDAYABHANU: PRESIDENT
R.AV
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