BEFORE THE DISTRICT FORUM : KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Wednesday the 30th day of November, 2005
CD No. 115/2005
N. S.Rajasekar,
S/o Venkata Ratnam,
H.No.3/221,
Near Geethamandir,
Kurnool-4 … Complainant
-Vs-
The Branch Manager,
National Insurance Company Ltd,
Gandhi Nagar,
Kunool. … Opposite Party
This complaint coming on 23.11.2005 for arguments in the presence of Sri M.L.Srinivasa Reddy, Advocate, Kurnool for complainant and Sri. L.Hari Hara Natha Reddy, Advocate, Kurnool for opposite party, and stood over for consideration till this day, the Forum made the following.
O R D E R
(As per Smt C.Preethi, Member)
1. This CD complaint of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay an amount of Rs.43,000/- with 18% per annum towards damages caused to Motor Cycle of the complainant, Rs.10,000/- as compensation, costs and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant is the owner of the Motor Cycle bearing No. AP 21 E 7891 and insured the said Motor cycle with opposite party under policy No. 02/6204493 covering own damages of the vehicle. On 27.4.2003, one Late N. Narendra Kumar relative of the insured driving the said Motor cycle met with accident collided with the Tata Sumo coming from opposite direction on wrong side of the road with rash and negligent manner resulted in the death of said N. Narendra Kumar. Immediately, the complainant informed the opposite party and submitted claim form along with necessary documents. The opposite party deputed a surveyor who assessed the loss to Rs.43,000/- on total basis. Inspite of several requests the opposite party did not pay the said amount and repudiated the claim on 9.7.2003 through their letter stating that the rider of the Motor cycle N. Narendra Kumar was having L.M.V Licence and the said driving licence is not valid to drive Motor cycle of the complainant. But the complainant submits that the rider of the motor cycle is not at all responsible for the accident, hence the repudiation by opposite parties is amounting to deficiency of service.
3. In support of his case of complainant relied on the following documents Viz (1) C.C of FIR NO. 32/2003 of Devanakonda Police Station and (2) C.C of Charge Sheet/ Case disposal report, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and a third party affidavit and the above documents are marked as Ex A.1 and A.2 for its appreciation in this case. The complainant caused interrogatories to the opposite party and the complainant and the complainant’s said third party suitably replied to the interrogatories caused by opposite party.
4. In pursuance to the notice of this Forum as to this case of the complainant the opposite party appeared through their standing counsel and contested the case by filing written version.
5. The written version of opposite party denies the complaint averments as not maintainable either in law or on facts. But admits the complainant’s Motor cycle bearing No. 21E 7891 and the same is insured with opposite party under policy bearing No. 551001/3162/6260604493. As per the policy terms and conditions the person who possesses valid and effective driving licence to drive Motor Cycle with gear is only authorized to drive Motor cycle with gear. The driver who drove the said Motor Cycle on 27.4.2003 was possessing only L.M.V licence which is not an effective driving licence to drive Motor cycle with gear. Hence, there is breach of policy condition and the complainant knowingly allowed the said person to drive his Motor Cycle. Hence, the opposite party is not liable to pay any compensation to the complainant and the repudiation of claim is as per terms and conditions and lastly submits that the accident occurred only due to rash and negligent driving of driver of Motor cycle only, but created a false case against the driver of Tata Sumo stating that he drove the vehicle in rash and negligent manner. Hence, there is no deficiency of service on part of opposite parties in repudiating the claim of the complainant and seeks for the dismissal of complaint with costs.
6. In substantiation of its case the opposite parties relied on the following documents Viz (1) Driving licence of N. Narendra Kumar (2) Motor claim form (3) Policy No. 551001/31/02/6200004493 and along with terms and conditions (4) Final Survey report dt 22.6.2003 and spare parties of Rs.17,250/- (5) Works estimates given by AL-K-WORKS dt 30.5.2005 and (6) Repudiation letter dt 9.7.2003, besides to the sworn affidavit of the opposite party in reiteration of its written version as defence and the above documents are marked as Ex B.1 to B.6 for its appreciation in this case and caused interrogatories to the complainant and third party of the complainant and suitablely replied to the interrogatories of the caused by the complainant. The opposite party also replied on the depositions of RW1 and RW2.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite party:-
8. It is the case of the complainant alleging deficiency of service on part of opposite party for not paying amount towards the damages caused to his Motor cycle on 27.4.2003. The complainant also submitted that on 27.4.2003, his Motor cycle was driven by his relative N.Narendra Kumar who was admittedly possessing LMV driving licence but the accident caused is not due to the negligence of deceased but due to the rash and negligent driving of the driver of opposite direction vehicle i.e Tata Sumo as per Ex A.1 Certified Copy of FIR and Ex A2 CC of Charge Sheet. But as against to it the opposite party in its written version averments alleges that the driver of Motor Cycle ( N.Narendra Kumar) was possessing LMV driving licence, who is not authorized to drive Motor cycle with gears which is clear violation of terms and conditions of the said policy, hence the repudiation is valid. The CC of FIR in Ex A.1 and CC of Charge Sheet in Ex A.2 clearly shows that the death of the deceased driver of motor cycle N. Narendra Kumar was due to accident caused by rash and negligence driving of Tata Sumo driver, unless the driver of the motor cycle was responsible for the accident and if the accident occurred as a result of collision with rash and negligent driving opposite side vehicle i.e. Tata Sumo, the driver of the motor cycle cannot be held responsible and complainant’s side relied on the decision of Kerala State Commission between the Branch Manager, Oriented Insurance Company Ltd Vs V.M. Joseph reported in 1999 (1) CPR pg 449, where in it was held that the crucial point would be whether non possession of effective licence has contributed to occurrence of accident the police after investigation had challaned the vehicle which had collided with the car of the complainant, therefore, the claim cannot be repudiated on the ground that the complainant is not possessing effective driving licence, another decision relied by the complainant is that of High Court of Karnataka, reported in 2005 ACJ pg 1509, wherein it was held that where a Motor Cyclist had licence to drive Light Motor Vehicle, it cannot be said that he was disqualified to hold or obtain a driving licence for Motor Cycle with gears, therefore insurance company is liable. In the case on hand it is admitted fact that the police has registered a crime and after investigation filed a Charge Sheet ( Ex A.2) against the driver of the Tata Sumo which collided with the Motor cycle of the complainant . This material would indicate that the insured was not responsible for the occurrence of the accident nor in any way contributed to the said accident. Hence, the opposite party is liable. In the light of above position of law the decision reported by opposite party reported in IV (2005) CPJ pg 115 (NC) has little relevancy to this case for its appreciation.
10. It was urged by the learned counsel for opposite party that the complainant did not produce Motor cycle with gears driving licence of the deceased but produced LMV driving licence of the deceased, which itself shows that the insured was not possessing valid driving licence, which is clear violation of terms & conditions of said policy. The opposite party will stand exonerated because at the relevant time of the accident the driver of Motor cycle was not having valid driving licence to drive Motor Vehicle with Gears. But following the afore mentioned decisions when the driver of the motor cycle was not responsible for the accident, the opposite party will not get exonerated.
11. To sum up, following the supra decisions, it is not open to the opposite party to insist for the driving licence of the driver of Motor cycle when it is clear that the death of the insured occurred due to rash and negligent driving of the opposite direction Tata Sumo as per FIR and Charge Sheet. Hence, there appears every justification in the claim made by the complainant. As the opposite party by their deficient conduct driven the complainant to the Forum for redressal the complainant is entitled to costs of the case.
12. In the present case, the complainant has claimed a sum of Rs.43,000/- but the opposite party submitted that certain depreciation are tobe deducted from the repairs. The Ex B.4 Final Survey report assessed the loss after depreciation to Rs.17,250/-. Thus basing on Ex B.4 the claim has been reduced to Rs.17,250/- which the opposite party has to pay to the complainant.
13. In the result, the complaint is allowed directing the opposite party to pay to the complainant Rs.17,250/- with 12% interest per annum from the date of accident till realization along with Rs.1,000/- as costs of the case within a month of receipt of this order.
Dictation to the Stenographer, transcribed by her, corrected and pronounced in the open court this the 30th day of November, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties:
RW1. Sri S.A. Rahim.
RW2. Sri V.Viswanatha Reddy
List of Exhibits Marked for the complainant:
A1 C.C. of FIR No.32/03 of Devanakonda P.S.
A2 C. C of Charge Sheet / Case Disposal Report
List of Exhibits Marked for the opposite party:
B1 Driving licence of N. Narendra Kumar (Deceased)
B2 Motor Claim Form
B3 Policy copy No.551001/31/02/6200004493 and along with terms and conditions
B4 Final survey report Dt.22-6-2003 and spare parts of Rs.17,250/-
B5 Works estimation given by AL-K Works Dt.30-5-2005
B6 Repudiation letter Dt.9-7-2003
PRESIDENT
MEMBER MEMBER
Copy to:-
1. M.L. Srinivasa Reddy, Advocate, Kurnool
2. L. Hari Hara Natha Reddy, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
