Date : 18.09.2012.
Per Mr.K.B.Gawali, Hon`ble Member.
1. Present appeal is filed by New India Assurance Co.Ltd. which was original opponent challenging the judgment and order dated 19.6.2007 passed by District Forum, Nanded in C.C.No.190/2006. Present respondent is the original complainant.
2. The brief facts of the complaint of respondent are that he had owned tractor and trolly. The tractor bearing No.MH-26/C-1582 and trolly bearing registration No.MH-26/B-3051. It was submitted by respondent/org.complainant that the said tractor and trolly was insured with respondent Insurance Company, the policy bearing NO. 160901/31/01/14265 for the period 1.3.2002 to 28.2.2003. It was contended that on 20.2.2003 the driver of the said tractor namely Datta S/o Amruta Modalwad while driving the said tractor and trolly with loaded Jawar met with an accident. That in the said accident the driver of the vehicle died on the spot and both the tractor and trolly were severely damaged. The said incident of accident was reported to the Police Station Ramtirth and crime No.26/03 was registered. That, the said accident was intimated to appellant. Accordingly, appellant carried out the spot survey and taken photographs of the damaged vehicle and directed respondent to get the vehicle repaired and to submit the bills. It was further submitted that as per instruction of the appellant Insurance Company the respondent got the said tractor and trolly repaired at the workshop of Saibaba Tractors Nanded and had to spend total amount of Rs.1 lakh. It was further contended that respondent submitted the claim proposal along with all relevant documents and original bills etc. with the appellant Insurance Company for settlement of the claim. However appellant Insurance Company vide letter dated 28.10.2005 rejected the claim of the complainant and hence he filed complaint before District Forum seeking direction to the appellant Insurance Company to pay him amount of Rs.1,15,000/- along with interest @ 18% p.a. from the date of accident till it`s realisation.
3. Appellant/respondent appeared before the Forum and resisted the claim. It was contended that driver of the vehicle i.e. deceased Datta Modalwad was not having valid and effective driving license on the date of accident. It was also contended that the vehicle was being used for commercial purpose and that there were six persons travelling in the tractor which was against the conditions of the policy and therefore it was contended that respondent/complainant had violated the condition of the insurance policy. It was also contended that the appellant Insurance Company had appointed the surveyor who had assessed the loss to the tune of Rs.30,661/-. However due to the breach of policy condition the claim of respondent was rejected vide letter dated 28.10.2005 and there was no deficiency in service on the part of the Insurance Company. It was therefore averred that the respondent/complainant was not entitled to receive any compensation as claimed and the complaint be dismissed.
4. District Forum after going through the papers and hearing the parties partly allowed the complaint and directed the Insurance Company to pay to respondent compensation of Rs.30,461/- with interest @ 9% p.a. from the date of repudiation of the claim i.e. 28.10.2005 till the realisation. In addition it was also directed to pay him Rs.10,000/- towards mental harassment and Rs.1000/- as cost of the complaint.
5. Aggrieved and dissatisfied with the said judgment and order, present appeal is filed in this Commission. Appeal was finally heard on 23.8.2012. Adv.Shri.V.R.Mundada was present for the appellant. None was present for respondent although on earlier date Adv.Shri.V.B.Dhage holding for Adv.Shri.A.M.Gaikwad had appeared for the respondent. We heard Adv.Shri.V.R.Mundada appearing for the appellant at length and appeal was reserved for judgment and order.
6. It was submitted by learned counsel Shri.Mundada that driver of the said vehicle i.e. deceased Datta Modalwad was driving the said tractor having no valid and effective driving license on the date of accident. Therefore he was not authorised to drive the tractor with trolly. It was further submitted that the driver was having license only to drive the tractor. Learned counsel contended that respondent did not produce the license of the driver on record. However Insurance Company obtained the details of his license from the Dy.Regional Transport Officer, Nanded through the investigator namely Adv.A.Rama Reddy who submitted his report dated 4.10.2004. That, as per the report submitted by investigator the driver was possessing the license to drive “LMV-NT Tractor” only on 11.1.1997. It was also contended by learned counsel that respondent has used the said tractor and trolly for commercial purpose and carried the passengers which was against the terms & conditions of the policy. He therefore contended that the Insurance Company has rightly repudiated the claim and there was no deficiency in service on the part of Insurance Company . However the Dist.Forum neglecting this fact on record has allowed the complaint and erroneously passed the impugned judgment and order directing the Insurance Company to pay compensation.
7. We have perused the record as well as considered the oral submission made by learned counsel Shri.V.R.Mundada for the appellant. From the perusal of the record it is revealed that the claim of respondent towards damages of the said vehicle was repudiated mainly on the ground of , i) the vehicle was being driven by the driver having no valid and effective driving license on the date of accident, ii) that it was being used for commercial purpose and six passengers were travelling in the said tractor which was against terms and conditions of the policy. As regards the driving license it is revealed from the report dated 4.10.2010 submitted by appellant`s investigator Adv.A.Rama Reddy that prior to 2001 the license in respect of driving the tractor was being issued as “LMV-NT Tractor” only. However after 2001 the procedure to issue license as “LMV-NT Tractor & Trolly” was being followed. It means prior to 2001 although the license was given only to drive LMV-NT Tractor he was authorised to drive the tractor with trolly. License issued to deceased driver namely Datta Modalwad was of LMV-NT Tractor and the date of issue of license was 20.11.1996 i.e. prior to year 2001. We are therefore of the view that the deceased driver Datta Modalwad was authorised to drive the tractor with trolly. As regards the breach of condition of the policy it is observed that there is no insurance policy on record and therefore Insurance Company has not proved to have violated this condition by the complainant. We do not also find any nexus between carrying passengers and said accident. Therefore repudiation of the claim of the complainant by respondent has not been justified. It is also to be noted that respondent had filed insurance claim immediately after the said incident of accident which occurred on 20.2.2003 and Insurance Company repudiated the claim on 28.10.2005 i.e. after about more than 2 years which itself can be said as deficiency in service.
8. It is also to be noted that the Insurance Company had appointed surveyor Shri.Ramvilas Hedda to assess the loss caused due to the accident who has surveyed the damages of the vehicle and submitted his report on 28.3.2003. As per the said survey report net assessment of the damage is Rs.30,461/-. Therefore Insurance Company ought to have sanctioned the claim at least as per the assessment made by surveyor. While deciding the claim District Forum has considered this survey report and accordingly allowed compensation as per surveyor`s assessment.
9. In view of the above said facts and circumstances it is apparent that by repudiating the claim that too after two years the Insurance Company has committed deficiency in service and therefore we find no substance in the appeal filed by Insurance Company. Therefore we do not want to interfere with the judgment and order pass by the Dist.Forum. We therefore pass the order accordingly.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
Pronounced on 18.09.2012.
Mane
