Before the District Forum: Kurnool
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra reddy, B.Com., LL.B., Member
Tuesday the 26th day of April, 2005
C.D.No.125/2004
Miss A.Sudhavarshini,
D/o A.Venkata Rami Reddy,
R/o H.No.62/157,
Chidambar Rao Street,
Kurnool District. …Complainant represented by his counsel
Sri.M.L.Srinivasa Reddy, Advocate
-Vs-
The Divisional Manager,
United India Insurance Company Limited,
Kurnool District. . . . Opposite party represented by his Counsel
Sri D.Yella Reddy, Advocate.
O R D E R
(As per Smt C.Preethi, Member)
C.D.No.125/2004
1. This Consumer Disputes case of the complainant is filed under section 12 of C.P.Act 1986, seeking a direction on the opposite party to pay Rs. 1,80,000/- with 18 percent interest from the date of accident till realization, Rs. 20,000/- towards compensation, costs of the complaint and any other relief or reliefs which the complainant is entitled in the exigencies of the case.
2. The brief facts of the complainant case is that the complainant owner of the Tata Indica car bearing No. AP 21 V 7615, insured the said car with opposite party vide policy bearing No. 051100/31/03/00841 and the said policy was in force on the date of the accident 15/16-4-2004, the said car met with accident while proceeding from Hyderabad to Kurnool at about 1.30 A.M near Amadabakula Village within the limits of Kotha Kota, Police Station and the said car was extensively damaged. Immediately, after the accident information was given to the opposite party by the complainant and later submitted all relevant documents along with claim form claiming amount for the damages to the said car. The opposite party inturn appointed a surveyor who inspected the damaged car and submitted his report for settlement on total loss basis. On the advise of the opposite party the surveyor sold the damaged car to a buyer for Rs. 1,50,000/- and took signatures of the complainant for transfer of damaged car in the name of the purchaser. The opposite party agreed to settle the claim for full and final settlement to a sum of Rs.1,80,000/- in last week of May, 2004, accepting the proposal the complainant has given consent letter for settlement of claim for Rs. 1,80,000/- besides to Rs. 1,50,000/- which was already paid. In-spite of several requests and demands the opposite party did not pay the said amount, being vexed the complainant got issued a legal notice dated 03-08-2004 to the opposite party requesting for settlement of claim. The opposite party receipted the said letter but did not paid any amount nor replied to the said letter but sent a repudiation letter dated 25-10-2004, stating that the complainant has violated terms and conditions of the policy as the driver of the car M.Venkateswarlu has no valid driving license to drive the said vehicle at the time of the accident. But the complainant submits that before appointing the said M.Venkateswarlu as driver had enquired with previous vehicle owners by name P.Jilani Basha S/o. Rawoof and Ibrahim S/o Md.Yunus of Kurnool under whom they said M.Venkateswarlu worked as drive and after seeing the original driving license which appear to be genuing and renewed by competent persons from time the complainant appointed him as driver. Therefore, the complainant has taken all reasonable precautions before appointing the said M.Venkateswarlu as driver and there is no violation of policy terms and conditions by the complainant. So non-settlement of the claim of the complainant is amounting to deficiency of service by the opposite party to the complainant.
3. The complainant in support of her case relied on the following documents Viz (1) Office copy of legal notice dated 03-08-2004 issued by complainant’s counsel to opposite party. (2) Acknowledgement of opposite party as to the receipt of Ex.A1. (3) Repudiation letter dated 25-10-2003 of opposite party to the complainant. And (4) Original Driving License of M.Venkateswarlu, besides to the sworn affidavit of the complainant in reiteration of her complaint averments and the above documents are marked as Ex.A1 to Ex.A4 for its appreciation in this case. The complainant and the third party suitability replied to the questions caused by the 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 denial written version questioning the maintainability of the complainant’s case either in law or on facts.
5. The written version of opposite party admits the complainant vehicle bearing No.AP21 V 7615 insured with it under policy bearing No.051100/31/03/00841 covering for a period from 28-01-2004 to 27-01-2005. The complainant in her letter date d 16-04-2004 informed the opposite party that her vehicle met with accident on 16-04-2004 at about 1.30 A.M. near Kotha Kota and mentioned driver of the vehicle as M.Venkateswarlu. Immediately the opposite party deputed a spot surveyor and deputed one P.Linga Reddy, to assess damages to the said car and the said surveyor assessed the wreck value of Rs.1,50,000/- and recommended to pay Rs.1,79,000/- to which the complainant gave her consent for settlement. Basing on the particulars of driving license the opposite party deputed an Advocate Investigator B.Hulthenna to get the said particulars form the issuing authority. The issuing authority in their endorsement dated 27-08-2004 stated that on verifying the office computer records, informed that no driving license was issued to M.Venkateswarlu bearing No.DLNo.30145/RRD/1998 dated 23-04-1988 by their office. So, it is clear that the driver M.Venkateswarlu has no driving license to drive the said car and it is a false one and has no legal sanctity.
6. As per the terms and conditions of the policy the driver should possess valid and effective driving license to driver a particular category of vehicle, the complainant knowing full well that the driver was not having valid driving license has allowed to drive the said car. Hence, the repudiation dated 28-10-2004 giving all details is no way illegal or arbitrary.
7. The opposite party lastly submits that the complainant’s car is a passenger carrying vehicle as is used for commercial purpose as taxi, hence the complainant will not come within the purview of consumer as defined Under Section 2 (a) of C.P. Act, 1986. So, this Forum has no jurisdiction to entertain the complaint of the complainant and seeks for the dismissal of complaint with costs.
8. In support of its case the opposite party relied on the following documents Viz., (1) policy bearing No.051100/31/03/00841of the complainant’s vehicle. (2) Letter dated 16-04-2004 of complainant to opposite party. (3) Private and confidential Motor Final Survey Report dated 31-05-2004 of P.Linga Reddy. (4) Attested Xerox copy of Driving License of M.Venkateswarlu. (5) Letter dated 16-07-2004 of opposite party to the Additional License Authority, Ranga Reddy District. (6) Endorsement given by Additional License Authority, Ranga Reddy District. (7) Letter of Advocate Investigator Pathikonda to opposite party. And (8) Repudiation letter dated 25-10-2003 of opposite party to the complainant, besides to the sworn affidavit of opposite party in reiteration of its written version as defence and the above documents are marked as Ex.B1 to Ex.B8 for its appreciation in this case and caused questions to the complainant and third party.
9. Hence the point for consideration is whether the complaint has made out the case against the opposite party and her entitleness to the reliefs sought.
10. The opposite party is not denying that the complainant as the owner of the car bearing No.AP21 V 7615, and that she got insured her car with the opposite party and obtained policy vide Ex.B1. The said policy was in force form 28-01-2004 to 27-01-2005. While the said policy was in force the said car met with accident on 16-04-2004 near Kotha Kota and the complainant submitted claim form with necessary/relevant documents but to the dismay of the complainant the opposite party repudiated the claim vide Ex.A3/Ex.B8 on the ground that he vehicle was driven by a driver on the relevant day, who was not having a valid driving license. So, the only ground on which the opposite party repudiated the claim of the complainant was invalid driving license to the driver of the insured vehicle.
11. According to the complainant the license possessed by M.Venkateswarlu is an effective driving license and is a valid one but according to the opposite party the driving license is a fake and not genuine and bogus one. The complainant files Ex.A4 original driving license with driver’s photo affixed on the said driving license. The said driving license was purported to have been issued by the Additional License Authority, Ranga Reddy District and holding its validity from 23-04-1988 to 22-04-1991, and its subsequently a number of times, it was renewed up to 02-04-2006. The complaisant relied on her sworn affidavit besides to two third party, sworn affidavits of P.Jilani basha, S/o Rawoof and Ibrahim, S/o Yunus. Mr.Jilani basha stated in his sworn affidavit that the said driver M.Venkateswarlu worked under him as a driver of his Matador Van bearing No.AP21 U 2346 for two years from 2001 to 2003 and Mr.Ibrahim also stated in his sworn affidavit that the said driver M.V.nkateswarlu worked under him as driver of his tourist bus for three years till 2000.
12. The opposite party alleged that they have appointed an Advocate Commissioner by name B.Hulthenna to get the driving license particulars from the issuing authority of the said license and the said investigator got an endorsement given by Additional License Authority, Ranga Reddy District vide Ex.B6, stating that after verifying their records no such license is issued to M.Ventateswarlu. The opposite party in support of their contention did not file the so called investigation report on any affidavit of the said investigation. Hence, the so called investigation does not help the opposite parties defence.
13. The complainant in support of his case regarding legal aspects placed reliance on the following rulings.
- National Insurance Company Limited -Vs- Sant Kumar Goyal (National Commission) reported in I (2005) CPJ Page 79, it was held that repudiation of claim by opposite party, basing on the contention that driving license of the driver employed by the complainant is fake. When the complainant was satisfied that he driver has a driving license then there would be no breach of policy condition, and the complaint was allowed.
- New India Assurance Company Limited -Vs- Kishan Bai (National commission) reported in I (2005) CPJ Page 81, where is it was held that claim was repudiated by the opposite party on the ground that driver was not having valid driving license at the time of the accident. The Insurer failed to prove negligence or failure to exercise reasonable case on part of insured, Insurance Company is directed to pay the policy amount.
- Divisional Manager, New India Assurance Company Limited -Vs- Tumu Guruva Reddy and others of High Court of Andhra Pradesh at Hyderabad in 2001 reported in ACH Page 542, wherein held it was that driver of the offending vehicle possession a fake driving license but as he worked for a decade in the State Corporation, and the owner is not expected to conduct an enquiry before employing the driver, and on the face of the said document its cannot be said to be a forged document, even though the insurance Company adduced evidence to prove that the driving license was not genuine but as it could not prove that the owner is having knowledge of this fact that the Insurance Company could not be exempted from its liability as the said breach was a mere breach but not a willful breach.
- United Insurance Company Limited -Vs- Lehru and other reported in (SC) 2003 SAR (Civil) Page 386, wherein, it was held that, it is the duty of the insured owner to check whether the driver has a driving license, on producing it on the face it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a competent authority or not. When the owner is satisfied that he driver has a license there would be no breach, and the Insurance Company would then be liable to pay the insured amount.
- Divisional Manager, New India Assurance Company Limited -Vs- Tumu Guruva Reddy and others of High Court of Andhra Pradesh at Hyderabad 1999 ACJ Page 1077, wherein, it was held that it is beyond anybody’s comprehension that the owner should first verify the genuineness of the license with the concerned authorities before entrusting the vehicle to the driver, and owner had taken reasonable steps, acted bonafide and discharged his statutory obligation. Hence the Insurance Company is not exempted from its liability on the ground that the driver has no valid license at the time of accident.
- Ramesh Lal Arya -Vs- United Insurance Company Limited and others (SCDRC) Uthar Prdesh at Lucknow 2002 (2) CPR Page 301, wherein it was held that when insured appointed a duly licensed driver to drive the vehicle but the driver handed over the vehicle to some other person who caused accident insured could not be denied claim under policy on the ground of breach of term policy.
- In an un-reported decision of Honourable A.P.S.C.D.R.C between Divisional Manager, New India Assurance Company Limited -Vs- B.H.Ramana Reddy, where it was held that the complainant was entitled to get only 75 percent of the awarded amount to him with interest of 9 percent.
- United India Insurance Company Limited -Vs- Madiga Thappeta Ramakka And others, High court of Andhra Pradesh 1995 ACJ Page 358, it was held that, it is for the Insurance Company to summon the driver or the RTA Official to prove that the driver did not have any license, if the insurance company as not discharged its burden then it is certainly liable for insured amount.
14. Following the afore mentioned judgments cited by the complainant and the exhibits marked, the Supreme Court says that the owner of a vehicle is not expected to check whether the license issued by a competent authority or not, if on producing it and on face of it looks genuine the Insurance Company is liable. The license possessed by the driver M.Venkateswarlu who said to have been driving the said vehicle at the relevant time was ultimately found to be a fake license, even though may appear to be a breach of condition of entrustment of the vehicle to a duly licensed driver, from the said Ex.A4, prima-facie is not appearing to be a forged one, except on finding from office records, there remains any reasonable basis to doubt the owner of the car bonafidies of the same, particularly, when it bears renewal from time and again by a duly authorized person, there remain every possibility to the insured to believe the said driving license, she prima-facie is discharged of the duty of exercising every reasonable care or duty of care towards insurer also. The two third party sworn affidavits and the sworn affidavit of the complainant in unit one says that the said M.Venkateswarlu was previously employed by P.Jilani basha and Ibrahim and worked there for about 5 years but the opposite party submits that the license has not been issued by the Licensing Authority at Ranga Reddy District and basing its non traced in is records any willful breach of condition on the part of the owner of the insured car could be brawn. The opposite party having taken all pains in adducing the relevant evidence to show that the license possessed by the driver M.Venkateswarlu is not genuine, but the opposite party could not show that the owner of the car having knowledge of the said fact, employed the driver and there by committed a willful breach of condition embodied in the policy. The complainant cannot be legitimately be expected to conduct an enquiry before employing the said driver that the license possessed by him in fact and genuine one or not and prima facie, the license is not having any material to doubt of its bonafides and the complainant thereby has every reason to believe that the license possessed by the driver was a valid driving license. The complainant owner the lorry cannot be held as guilty of any beach of policy condition obligating them to the insurer.
15. From the above reasons it is clear and from the facts and circumstances of this case that the opposite party failed to establish that the complainant, owner of the car committed willful breach of promise by entrusting the said car to a driver having had the knowledge that the license possessed by the driver was a fake license.
16. To sum up in view of the judgments cited above the discussions made supra and the exhibits filed as well as legal aspects, the complainant has to get the policy amount for the damages the said car sustained in accident covered under the policy and the opposite party is liable to pay the same and there is deficiency of service on the part of the opposite party in not paying the said amount.
17. In the present case the complainant has claimed a sum of Rs.1,80,000/- but the Insurance Company has submitted that in Ex.B3 Final Survey Report the loss after depreciation was assessed to Rs.1,79,000/-. Thus basing on Ex.B3 the claim has been reduced to Rs.1,79,000/- which the opposite party has to pay to the complainant.
18. Thus, the complainant is entitled to claim a sum of Rs.1,79,000/- along with interest 12 percent per annum from the date of accident till realization. The opposite party is directed to pay the supra awarded amount within one month from the date of receipt of this order along with Rs10,000/- as costs.
Dictated to the Stenographer Typed to the dictation corrected by us pronounced in the Open Court this the 26th day of April, 2005.
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant:- Nil For the opposite party:- Nil
List of Exhibits Marked for the complainant:-
Ex.A1 Office copy of legal notice dated 03-08-2004 issued by complainant’s counsel to opposite party.
Ex.A2 Acknowledgement of opposite party as to the receipt of Ex.A1.
Ex.A3 Repudiation letter dated 25-10-2003 of opposite party to the complainant.
Ex.A4 Original Driving License of M.Venkateswarlu.
List of Exhibits Marked for the opposite party:-
Ex.B1 Policy bearing No.051100/31/03/00841 of the complainant
vehicle.
Ex.B2 Letter dated 16-04-2004 of complainant to opposite party.
Ex.B3 Private and Confidential Motor Final Survey Report dated
31-05-2004 of P.Linga Reddy.
Ex.B4 Attested copy of Driving License of M.Venkateswarlu.
Ex.B5 Office copy of Letter dated 16-07-2004 of opposite party to the Additional Licensing Authority, Ranga Reddy.
Ex.B6 Endorsement given by Additional Licensing Authority,
Ranga Reddy.
Ex.B7 Letter of Advocate/Investigator Pathikonda to opposite party.
Ex.B8 Repudiation Letter date d 25-10-2003 of opposite party to the complainant.
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
