F.A. No. 305/2008   against C.C.  94/2007, Dist. Forum, Karimnagar.     

Between:

Nehru Jyothi,

w/o. Late Indrasena Reddy

Age: 24 years,

Now at  Indiranagar

8  Incline Colony

Godavarikhani, Ramagundam

Karimnagar Dist.                                        ***                           Appellant/

          .                                                                                       Complainant

                                                                   And

M/s. United India Insurance Company Ltd.

Ramagundam, P.B. No. 36,

Medipalli Road, Jyohtinagar

Ramagundam, Karimnagar Dist.

Rep. by its Divisional  Manager,                  ***                         Respondent/

                                                                                                Opposite Party

Counsel for the Appellant:                          M/s. M. Ramgopal Reddy

Counsel for the Respondent:                       M/s. R. Brizmohan Singh.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

                                   SMT. M. SHREESHA, MEMBER

THURSDAY, THIS THE EIGTH  DAY OF JULY  TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

1)                 Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that the auto trolley belonging  to the deceased,  husband of the complainant,  was insured for Rs. 88,000/- covering the period from 28.12.2004 to 27.12.2005.  While so on 25.9.2005 when the deceased was transporting a Xerox machine it met with an accident wherein the deceased died on spot.  The auto trolley was damaged.  On a report the police registered a case in crime No. 99/2005  u/s 337 and 304 of IPC.    When she submitted the claim, it was repudiated on the ground

that the  owner-cum-driver  did not possess valid driving license (DL) on the date of accident, besides that he was carrying  two persons against the  permitted capacity of one person.    In fact the  DL was valid from  24.10.1997 to 23.10.2017 and therefore she filed the complaint claiming the amount covered under the policy together with interest, compensation and  costs. 

3)                 The insurance company resisted the case.    The complainant   was not the nominee under the policy.   She was put to proof that  she was legally wedded  wife  and the legal heirs of the deceased are necessary parties.   The vehicle  was registered as  LMV.    It was a transport vehicle.  The driver  was not having valid and effective DL, besides  two persons were travelling in the vehicle as against seating capacity of one person.    When it had applied for the DL, the Additional Licensing Authority, Peddapalli   informed that the driver was having DL to drive LMV or G.V  valid from 15.9.1999 to  17.12.2004  and the same was not renewed.    The allegation that the DL was valid up to  23.10.2017 is not correct, and therefore prayed for dismissal of the complaint with costs.

4)                The complainant in proof of her  case filed her  affidavit evidence and got Exs. A1 to A9 marked, while the insurance company filed the affidavit evidence of its  Asst. Divisional Manager and  got Ex. B1  to B4 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that  the driver was not having valid  DL at the time of accident and  that he was carrying  another person contrary to the  terms of the policy  and  therefore not entitled to compensation. By  following the decision  in ‘National Insurance Company Vs. Lakshmi Narain Dutt reported in 2007 (4)  Scale’  it dismissed the complaint.

6)                Aggrieved by the said decision, the appellant insurance company preferred the appeal contending  that the Dist.  Forum did not appreciate  facts  or law in correct perspective.     It ought to have seen that the driver was having valid DL No. 4137/97 and badge No. 2046/98 valid from  24.10.1997 to 23.10.2017.   In fact he was having license   wherein two coloumns  were shown  Auto Rickshaw + LMV  for transport valid from  24.10.1997  to 23.10.2017 and  Non-Transport  MCWG  valid from  9.11.1998 to 8.11.2001.    Therefore she prayed that the complaint be allowed. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact  that the  insurance policy covering  the goods carrying auto trolley was insured for Rs. 88,000/- valid from  28.12.2004 to 27.12.2005.  Equally it is not in  dispute  that on the intervening night of  25/26.9.2005  while the insured was driving the vehicle it met with accident resulting in spot death of the assured vide  FIR Ex. A6,  inquest report Ex. A7, post-mortem examination  report Ex. A8 and charge sheet Ex. A9.    It is also not in dispute that  while he was  driving the vehicle he was accompanied by one of his friends  Paripelli Ravinder.   The policy Ex. A5  mentions that  it is a ‘goods carrying commercial vehicle (open) and the carrying capacity is  one person.     We may state that Hon’ble Supreme Court  in  Amalendu Sahoo Vs. Oriental Insurance Company Ltd. reported in II (2010) CPJ 9 SC  opined  that carrying more than the capacity would not entail repudiation of entire claim.    It may be considered  on non-standard basis, and 25% of the amount could be deducted. 

9)                 The insurance company contends that the driver-cum-owner  was not having valid and effective DL  by the time when the accident took place  and his DL was expired.  In order to prove the said contention, it has filed   Ex. B3 issued by  Additional Licensing Authority, Pedapalli.  It reads as follows :

“As per this office records DL No. 4137/97 Dt. 24.10.1997 is held  in the name of  N. Indrasena Reddy, S/o. Balreddy, Jyohtinagar to drive A/R (N.T).  He is also authorized to drive LMV or G.V. 15.9.199 and the DL renewed up to  17.12.2004  (i.e., expired).”

The complainant alleges  that the original DL which was filed by her marked as Ex. A3 shows that   he was having DL to run  Autorickshaw w.e.f.  9.11.1998 to 8.11.2001.  He was  also having DL  to run Auto Rickshaw/LMV w.e.f. 15.9.1999   However,  he was given DL to drive transport vehicle valid from  24.10.1997 to 23.10.2017.  We may state that a perusal of  Ex. A3 does  not tally  with the certificate issued by the  Additional Licensing Authority under Ex. B3.    Various  rubber and facsimile stamps were affixed  to the original  driving license Form No. 6.    In the left hand coloumn there was a stamp mentioning  that he was given DL to drive transport vehicle  w.e.f.  24.10.1997  to 23.10.2017 .  Beneath it  there is an endorsement  Badge No. 2046/98  w.e.f 30.11.1998 contrary to the above said entry.    Again on the right hand side  another endorsement  mentioning  DL  w.e.f  9.11.1998 to 8.11.2001 with seal of  Addl. Licensing Authority, Pedapally was made.    These contradictory endorsements undoubtedly  throw suspicion  about the genuineness  of those entries  specifically  in the light of Ex. B3 issued by the  Additional Licensing Authority.    Importantly on the reverse of Ex. A3  badge no. was noted as  2046/98 w.e.f 30.11.1998.    As per the entries in  Ex. A3  the vehicle converted into professional “ as A/R transport  and valid restricted up to  8.1.2001 w.e.f  9.11.1998.”    Assuming that it was renewed  as per the entries in the DL  he had DL up to  17.12.2004 only.    When the insurance company  repudiated  the claim  solely on the ground that  he was not having valid and effective DL  up till the date of accident, there is no reason why the complainant did not  approach the transport authorities  to take a certificate about the genuineness of Ex. A3  in the light of  Ex. B3  issued by the very same  licensing authority  in order to prove that the DL was valid and effective by the date of accident.    In the light of  Ex. B3 and in view of suspicious  corrections etc.  on Ex. A3, we are  of the opinion that he was not having valid and effective DL by the date of accident, consequently she was not entitled to any compensation.    We do not see any mis-appreciation of fact or law in this regard by the Dist. Forum.  We do not  see any merits in the appeal.

10)               In the result the appeal is dismissed.  No costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  08.  07.  2010.

*pnr

“UP LOAD – O.K.”