FA.No.77/2007 AGAINST C.D.No.38/2006  DISTRICT FORUM, KARIMNAGAR

Between:

Kolipaka Nagesh, S/o.Laxmaiah

Aged 41 years, Occ: Owner of

Lorry bearing No.AP-9-V-2772,

R/o.Basanthnagar, Karimnagar.                                                                                 Appellant/

                                                                                                                                      Complainant

                   A N D

1. The National Insurance Company Limited

    Rep. by its Divisional Manager

    Division Office 2—103, Near Municipal

    Council, Karimnagar.

2. The National Insurance Company Limited

    Rep. by its Divisional Manager, Shriram

    Site office, 2A, Prakasam Road, T.Nagar,

    Chennai Policy No.501602/31/04/6325690

    Valid from 21-12-2004 to 20-12-2005.                                                                  Respondent/

                                                                                                                                      Opposite parties.

Counsel for the Appellant: Mr.N.Janardhan Reddy

Counsel for the Respondents:-M/s.Naresh Byrapaneni

QUORUM:      SMT.M.SHREESHA,  MEMBER

&

SRI K.SATYANAND, MEMBER

THURSDAY, THE TWENTY NINTH DAY OF OCTOBER,

TWO THOUSAND NINE

Oral Order( Per Sri K.Satyanand,Hon’ble Member)
***

            This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum refusing to grant him relief.

        The facts of the case are briefly as follows:

        The vehicle owned by the complainant met with an accident on 21-6-2005 while the insurance policy taken out by him in respect of the said vehicle was in force.  As a result of the accident, the vehicle was damaged.  He claimed to have got it repaired and submitted his claim for the expenditure that he incurred in effecting repairs.  The insurance company after receiving the claim appointed a surveyor who quantified the damage to the lorry at Rs.17,380/- but ultimately after gathering the other information, the insurance company repudiated the claim on the ground that the vehicle in question AP 9 V 2772 was a heavy goods carriage vehicle.  It was being driven at the relevant point of time by a driver who had no valid and effective license in as much as he possessed merely a LMV non transport license only which according to the insurance was breach of the conditions set out in the insurance policy disentitling the owner from making a claim of own damages on the strength of the insurance policy.  Aggrieved by the said repudiation, the complainant filed the consumer complaint in question seeking a direction to the opposite party, insurance company, to pay him an amount of Rs.1,50,000/- with 24% interest towards the damages sustained by the lorry and a further amount of Rs.50,000/- towards loss of income and compensation for mental agony. 

        The insurance company resisted the claim reiterating the fact that the claimant violated the fundamental condition and thereby disentitled himself from making any claim.

        The complainant filed his own affidavit and relied upon documents marked as Exs.A1 to A20 most of which were calculated to prove the incident and the expenditure he incurred towards repairs etc.  The opposite party also relied upon documents marked as Exs.B1 to B6.

        On a consideration of the evidence adduced, the District Forum came to the conclusion that the claim was untenable and therefore dismissed the complaint.

        Aggrieved by the said order, the complainant filed the present appeal with usual grounds obviously suggestive of the position of law contrary to the well laid case law in this regard.

        Heard. 

The point for consideration is whether there is any infirmity in the repudiation of the opposite party on the strength of the violation of the policy condition manifest in allowing the vehicle being driven by a LMV non transport licensed holder thought he vehicle was a heavy motor vehicle for carriage of goods.

        The appellant tried to rely upon 2008 (I) CPR 50 (NC), 2006 (I) CPR 386 and 2006 (I) CPR 424 decisions by National Commission, Karnataka SCDRC and Rajastan SCDRC respectively to drive at the point that the condition violated was not fundamental and in any view of the matter nothing precludes the Consumer Fora ordering compensation treating the claim as non standard claim.  The counsel for the respondent, insurance company, relied upon three judgments of the Supreme Court of recent origin  in 2008 ACJ 1 (C.A. No.4883/2007 arising out of S.L.P. (C) No.1939/2007, dt.12-10-2007), 2008 ACJ 2161 (Civil Appeal No.3496/2008 arising out of S.L.P.(C).No.3142/2007, dt.12-5-2008) and 2008 ACJ 1307 (C.A.1733/2008 arising out of S.L.P.(C).No.19965/2004 dt.4-3-2008) holding to the effect that in the claims made on the basis of non act policies, a contract has to be strictly construed and the violation like the one in the present case would go to the root of the matter and vitiate the claim itself.  Thus the decisions of the Supreme Court cannot but prevail.  This takes us to the truism that there are absolutely no merits in the appeal.

Accordingly the appeal is dismissed but without costs in the circumstances of the case.

                                                     Sd/

                                                                                                                                                MEMBER.

                                                                                                                                                  Sd/-

                                                                                                                                                MEMBER.

JM                                                                                                                     Dt.29-10-2009