BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri. K.V.H.Prasad, B.A., L.L.B., President,
And
Smt. C.Preethi,M.A.,L.L.B., Member
Sri R.Ramachandra Reddy, B.Com.,LL.B.,Member
Thursday the 20th day of Nov, 2015
C.D.No.110/2002
Between:
M/S Shree Sai Associates,
Rep by its Proprietor,
Mr.B.Ravindranath, S/o B.G.S.Naidu,
Plot No.18 &19, Santhosh Nagar Colony,
Kurnool. Complainant represented by his Counsel Sri M.L.Sreenivasa Reddy.
VS
The New India Assurancce Co.Ltd.,
Rep by its Divisional Manager,
Kurnool. Opposite party reprented by his Counsel Sri L.Hariharanath Reddy
The CD complaint of the complainant of the complainant is filed under section 12 of CP Act 1986, seeking direction of the parties to pay Rs.1,77,062/- with 12 percent p.a. and cost lorry damages and any such other reliefs, which the complaint is entitled in the exigencies of the case.
The brief facts of the complaint of the complainant are that complainant is the owner of the lorry bearing No.A.P.-9V 7874 and the same was insured with the opposite party under policy No.611500/31/01/01093 and the said policy was in force from 24.07.2001 to 23.07.2002 as per the terms of the policy the risk of own damages of the lorry also covers under the said policy and the opposite party is liable to pay insured amount if any damages is caused to the lorry for the said period. In the mean time on 12.12.2001 at about 8.30 A.M. the said lorry met with an accident near kistapuram village in miryalapadu mandal in nalgonda District in A.P. immediately the complainant informed the said accident and submitted all necessary claims forms and bills to the opposite party and requested to pay a sum of Rs.1,77,062/- towards damages of the lorry. But the opposite party repudiate the claim of the complainant through their letter dt.21.03.002 stating that the lorry was driven by the driver by name Mr.K. Narayana has not possessed effective driving license as it was found to be a fake one. But the complainant states that the said license is valid one and he is entitled for the claim
3. In pursuance to the notice of this forum of this case the opposite party got appeared through their standing counsel and filed his written version denying the averments made in the complainant as not maintainable in law or facts expect specifically admitted. It further submits that the complainant is entitled to claim any amount much less the amount claimed in the complaint, since the lorry in question was driven on the fateful day by the driver who was not having valid and effective driving license. It submits that the complainant insured his lorry bearing No.A.P.9V.787 with the opposite party and that the policy was in force at the relevant time of the accident and the said policy covers the risk of own damages and further the said lorry met with an accident near Kistapuram Village, Miryalaguda Mandal in Nalgonda Dist and the same was informed and submitted all necessary claim forms along with bills to the opposite party. It also admits that the opposite party repudiated the claim of the complainant through their letter dt.21.03.2002 on the ground that the driver who drove the lorry on the date of accident was not having valid and effective driving license.
4. It further that the complainant has taken all steps to verify the correctness and valid nature of the license of the driver namely K.Narayana S/o Sailu and that the complainant has given appointment to the driver on genuine license and that it was not a fake or bogus license as alleged. But in fact the license of the driver during the relevant time of the accident was not valid and effective as it was fake and bogus. On verification by opposite party through its investigator it was found that the license of driver K.Narayana S/o Sailu was not issued by additional licensing authority Hyderabad, (East Zone) and on somebody’s fault and mistake the opposite party should not be made to suffer. As such there was willful violation of the terms and conditions of the policy which dis-entitle the complainant for the reliefs. The compensation claimed is excessive and since it is a breach and violation of the terms and conditions of the policy of the contract the complaint is not maintainable before this forum. There is no jurisdiction as there is no deficiency of service and more over the complainant is not entitled any reliefs sought in the complainant. Thus the opposite party sought for dismissal of the complainants case
5. The complainant reliefs on the documentary record Viz(1) driving license of K.Narayana(2) letter Dt.21.03.002 address by the opposite party to the complainant (3) Xerox copy of the policy No.611500/31/01/01093 (4) Xerox copy of bills for getting repairs of the damage vehicle dt.08.03.2002 issued by shree sai associates submitted to opposite party (5) service certificate dt.05.05.2003 issued by Rajya Lakshmi Transport to K.Narayana (6) certificate dt.11.5.2002 issued by Sri Durga lorry transport Nalgonda to K.Narayana and the above documents are marked as Ex A1 to A6 for their appreciation in this case. The complainant also filed his sworn affidavit in re-iteration of his case and also 2 third party affidavits in support of his case. The opposite party relied on the documentary record viz., (1) policy bearing No.611500/31/01/01093 along with conditional (2) Motor claim form (3) private and confidential motor final survey report dt.22.02.2002 by K.Srinivasa Rao (4) reinspection report dt.28.02.2002 issued by A.V.S.C.Bose (Surveyor) and they are marked as Ex.B1 to B4 and also on Ex X1 letter dt.06/10/2003 of Asst.Secretery RTA and evidence of R.W.1 dt.09/10/2003 and the sworn affidavit of opposite party in re-iteration of its defence.
6. Hence the point for consideration is whether the complaint has made out the case against the opposite party and its entitleness to the reliefs sought
7. The Opposite party is not denying that the complainant is the owner of the lorry bearing No.A.P.9V-7874 and that he got insured his lorry with the opposite party and obtained policy. The said policy was in force from 24.07.2001 to 23.07.2002. While the policy in force the said lorry met with accident on 12.12.001 near kistapuram village Nalgonda district and the complainant the opposite repudiated the claim on the ground that the lorry was driven by a driver on 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 regarding the invalid nature of the driving license possed by the driver K.Narayana, according to the complainant the license possessed by K.Narayana 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 filed original driving license with driver photo affixed on the driving license, the said driving license purported to be issued by the additional licensing authority, Hyderabad (East Zone) and it was valid from 20.03.1994 to 19.03.1997 subsequently it was renewed up to 05.04.2002. The complainant filed his sworn affidavit besides to 2 third party affidavits of Y.Bhaskar Rao S/o Venkateswarlu and N.Srinivasa Rao S/o Venkateswarlu. Mr.N.Srinivasa Rao stated in his sworn affidavit that the said driver K.Narayana worked under him as a driver of his lorry bearing No.A.P.16T3960 during November 1997 to July 1998 and Mr.Y.Bhaskar Rao also stated in his sworn affidavit that the said driver K.Narayana and are marked as Ex.A5 and A6.
8. The opposite party adduced evidence of one P.Gopal Reddy S/o P.Ranga Reddy as R.W.No.1 working as junior assistant in the office of regional Transport (East Zone) Hyderabad and who is looking after the work of driving licence pertaining to the said zone the said R.W.No.1 says that after verification of D.L. Register of the computer pertaining to the D.L.No.13916 of 1994 said to have been issued to one K.Narayana S/o Sailu does not exists in their office records in the year 1994. As per their office records D.L.numbers issued in that year was in four digits, where as the number required for verification is five digits and the said driving license, subsequently was not renewed in their office. As such the genuineness of the driving license marked as Ex A1 was doubted and repudiated the claim of the complainant by the opposite party. The complainant on other hand submits that the driver K.Narayana D.L.was valid at the relevant time as per his sworn affidavit and 2 third party affidavits also corroborating the same the complainant is support of his case regarding legal aspects placed reliance on the following rulings
(1) Divisional Manatger, New india Assurance Co.Ltd., Vs Tuma Guruva Reddy and others of High Court of A.P. at Hyderabad in 2001 reported in A.C.J., Pg 542 held that driver of the offending vehicle possessing a fake driving license but as he worked for a decade in the state corporation, the owner is not expected to conduct an enquiry before employing the driver, on the face of the document cannot be said to be a forged document, even though the insurance company adduced evidence to prove that the driving license eas not genuine but it could not prove that the owner having knowledge of this fact. It was held that the insurance company could not be exempted from its liability as the said breach was a mere breach but not a will ful breach
(2) United India Insurance Co.Ltd., Vs Lehru and other reported in (SC) 2003 SAR (Civil) Pg 386, it was held that the duty of the insured owner is 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 the driver has a license there would be no breach, the insurance co. would then be liable to pay the insured amount.
(3) Divisional Manager new India Assurance Co.Ltd., Vs Tumu Guruva Reddy and other, High Court of AP, 1999 ACJ, Pg 1077, it was held that is beyond any bodys comprehension that the owner should first verify the genuineness of the license with the concerned authorities before entrusting the vehicle to the driver, owner had taken reasonable steps, acted bonafide and discharged obligation. Hence the insurance comp[any is not exempted from its liability on the ground that the driver has no valid license at the time of accident.
(4) Ramesh Lal Arya Vs United Insurance Co.Ltd., and others (SCDRD) Uther Pradesh at Lucknow ;2002 CPR Pg 301, it held when insured appointed a duly license driver to drive the vehicle but the 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.
(5) An un-reported decision of Honble A.P.S.C.D.R.C. between Divisional Manager, New India Assurance Co.Ltd., 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.
9. Following the above said judgments and the exhibits marked, the license possessed by the driver who said to have been driving the said vehicle at the relevant time was indeed a fake license, it might appear that there has been breach of condition that the vehicle should be entrusted to the duly licensed driver and it is also emerging from the evidence of RW.No.1 that the Exhibits A1 prima facie cannot be said to be a forged one, finding nothing wrong in the driving license or having any reasonable basis to doubt the same particularly when it has been renewed time again by the relevant faked one and the complainant has every reason to believe that the license possessed by the driver was a valid driving license.
10. Find the above reasons it is clear from the facts and circumstance of this case that the insurer failed to establish that the complainant owner of the lorry committed willful breach of promise by entrusting the said lorry to a driver having had the knowledge that the license possessed by the driver was a fake license.
11. To sum up view of the judgments cited above the discussions made above and the exhibits filed as well as legal aspects, the insured has to get the amount which he spent in getting the lorry repaired which was damaged. The insurance co. in not paying the amount.
12. In the present case the complainant has claimed a sum of Rs.1,77,062/- but the insurance co. Has submitted that certain deprecations are to be deducted from the repairs. The Ex. B3 final survey report assessed the loss after depreciation to Rs.1,15,160/- thus basing on Ex. B3 the claim has been reduced to Rs.1,15,160/- which the insurance co. has to pay to the complainant.
13. Thus the complainant is entitled to claim a sum of Rs.1,15,160/- along with 9 percent interest P.A. from the date of surveyors up at dt.22/02/2002 till realization. The opposite party is directed to pay to supra awarded amount within one month from the date of receipt of this of this order along with Rs.5,000/- as costs. In default the opposite is liable to pay the supra awarded amount with 12 percent p.a. till realization.
Dictated to the stenographer, typed to the dictation corrected by us, pronounced in the open court, this the 20th day of Nov,2003.
