DATED THE 29th JANUARY, 2016
O R D E R
JUSTICE R.N.BISWAL, PRESIDENT
This appeal has been directed against the order dated 03.2.2014 passed by the District Forum, Balasore in C.D.Case no. 25 of 2013 directing the appellant – Company to pay a sum of Rs. 77,500/- to respondent no. 1 towards her insurance claim within one month from the date of communication of the order and in case of non-compliance of the order within the time fixed shall carry Rs.100/- per day to respondent no. 1.
Appellants - Company were opposite party nos. 1 and 3, respondent no. 1 was complainant and respondent no. 2 was opposite party no. 2 before the District Forum.
The case of the complainant stated in brief is that she insured her Indica DLS Car bearing Registration no. OR-01-N-9535 with the opposite party – Company vide policy no. 345700/31/2011/613 for the period 27.8.2010 to 26.8.2011 on payment of due premium. On 11.2.2011 while the vehicle being driven by driver Ashish Kumar Pattanayak carrying two persons including the co-driver from Balasore to Bhubaneswar on the way it met with an accident near Amar Petrol Pump, Bhandari Pokhari. So the driver and the one passenger said to be father-in-law of the complainant got injured. Sanjay Mallick, the co-driver went to Khantapada P.S. under Balasore district and reported the incident, on the basis of which Station Diary Entry no. 243 dated 13.2.2011 was made by the O.I.C. of the said P.S. As per the case of complainant the repair cost of the vehicle was Rs.1,03,925.79. Thereafter, she lodged an insurance claim before opposite party nos. 1 and 3 – Company who deputed a surveyor to inspect the vehicle and estimate the loss, but the opposite party – Insurance Company repudiated the claim illegally on some vague grounds.
On being noticed by the District Forum, opposite party nos. 1 and 3 appeared through their counsel and filed a joint written version stating that the certificate issued by the I.I.C. of Bhandari Pokhari P.S. in connection with Station Diary Entry no. 243 dated 11.2.2011 does not reveal that three persons including the co-driver were moving in the said vehicle. It does not disclose that Ashish Kumar Pattanayak said to be one of the drivers and the father-in-law of the complainant were moving in the vehicle at the time of accident. This plea has been taken only to project that Ashish Kumar Pattanayak was on the wheel at the time of accident. According to them, on receiving information about the accident, the Divisional Manager, O.I.C. Limited, Balasore appointed M/s Devadutta Engineer and Associates, Surveyor and loss assessor to inspect the vehicle in question at the spot and to take photographs of outward visible damages caused to it. Again they engaged Er. S.C.Senapati, Surveyor and loss assessor on 25.2.2011 to survey the subject vehicle which was in the premises of Shree Bharat Motors Limited, who assessed the loss at Rs.77,500/- after deducting salvage, policy excess, depreciation value etc. Subsequently, on 3.6.2011, the representative of the complainant submitted before the opposite party – Company supplementary estimate of Rs.11,195/- which was sent to Er.S.C.Senapati, who after going through the same modified the loss to Rs.81,000/-. The opposite party – Company appointed Mr P.K.Jena, Advocate to verify the D.L. no. 0120000065992 standing in the name of Ashish Kumnar Pattanayak in the office of the Licencing Authority, Balasore and to obtain a certificate of the same. Mr P.K.Jena submitted the verification report along with the copy of the said licence to the Divisional Manager of Balasore Branch on 23.6.2011. On verification of the claim intimation letter, claim form, spot survey report, final survey report, certificate of the S.D.Entry dated 11.2.2911, it was ascertained that on 11.2.2011 at about 4.30 P.M. while the subject vehicle was proceeding towards Bhubaneswar from Balasore on N.H.5, near Amar Petrol Pump suddenly the rear left side brake drum was broken as a result of which the left side rear wheel got detached and the driver lost control over the vehicle and it rolled over the road divider and then came to normal position where as M/s Devadutta Engineers and Associates, who inspected the insured vehicle at the spot just after the accident reported that the accident took place due to burst of rear left side tyre and that Sanjaya Kumar Mallick was driving the vehicle at that time. According to the opposite party – Company just to get compensation, the complainant projected Ashish Kumar Pattanayak as driver of the subject vehicle at the time of accident.
It is the further case of the answering opposite parties that on verification of the R.C.Book in respect of the subject vehicle, it is found that it is an Indica DLS Car having seating capacity five including driver and was registered to carry passengers for hire and reward under contract. On verification of the driving licence of Ashish Kumar Pattanayak from Licencing Authority, Balasore, it was ascertained that he was authorized to driver light motor non-transport vehicle with effect from 10.11.2000 till 9.11.2020, transport vehicle M/HMV (Regd.Chassis) Goods with effect from 29.1.2011 till 28.1.2014, motor cycle with gear with effect from 29.1.2011 till 28.1.2014. So the so called driver Ashish Kumar Pattanayak was not possessing a valid and effective driving licence to drive the subject vehicle at the alleged time of accident. It was also found that the complainant was not having a permit to ply the vehicle in public place.
After going through the pleadings of the parties, hearing their respective counsel and perusing the documents placed on the record, the District Forum held that the cause of accident as per the finding of surveyor Er.S.C.Senapati in his report dated 3.6.2011 placed on the record shows that on the date of accident i.e., 11.2.2011 the subject vehicle was plying from Balasore to Bhubaneswar on N.H.5 and on the way due to sudden breaking of rear left side brake drum, the wheel got detached and the driver lost control over the vehicle completely. As such, the insured vehicle got imbalanced toppled down on the pitch road hard surface causing damage to the vehicle and accordingly passed the impugned order.
Being aggrieved with the said order the appellant has preferred the present appeal as stated earlier.
Learned counsel for the appellant – Company submits that the subject vehicle was a transport vehicle, but there is no endorsement in the driving licence authorizing Ashish Kumar Pattanayak to drive a transport vehicle. So respondent no. 1 violated the policy condition. In support of his submission, he filed some decisions. So according to learned counsel for appellant the District Forum ought not to have passed the impugned order and accordingly, prays to allow the appeal and set aside the impugned order.
Learned counsel for respondent no. 1 on the other hand contends that the driver Ashish Kumar Pattanayak was having a valid and effective licence to drive the subject vehicle and as such the impugned order does not warrant interference.
There is no dispute that driver Ashish Kumar Pattanaik was having a driving licence to drive light motor vehicle. Whether he was legally competent to drive the subject vehicle or not is not required to be gone into, because Er.S.C.Senapati engaged on behalf of the appellant – Company reported that the accident took place as the left side rear wheel brake drum burst. While Mr P.K.Jena, Advocate in his report stated that it took place as the left rear wheel got burst. There is no dispute that the subject vehicle was insured with the appellant – Company during the relevant time. So it cannot be said that due to inefficiency of the driver the accident took place. Whether the view of Er.S.C.Senapati or the view of Mr P.K.Jena, Advocate is accepted, it reveals that the accident took place due to the act of God. In fact Er.S.C.Senapati first assessed the loss after deducting value of salvage, depreciation value etc. at Rs.77,500/- and subsequently, on receipt of the additional estimate, he enhanced it to Rs.81,000/-, but the District Forum has awarded a sum of Rs.77,500/- only towards repair of the vehicle.
Accordingly, the appeal is dismissed being devoid of merit.
Records received from the District Forum be sent back forthwith.
