Appeal No.1221/08

National Insurance Company Ltd. V. Nand Lal


Before:

Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member


Shri Dinesh Kala,counsel for the appellant

Shri Surendra Singh Shekhawat,counsel for the respondent



Date of Judgement 23.6.09



BY THE STATE COMMISSION



This appeal has been filed by the appellant insurance company against the order dated 18.6.08 passed by the District Forum,Bikaner in complaint no.19/07,by which the complaint of the complainant respondent was allowed in the manner that the claim of the complainant respondent was treated as sub standard and out of Rs.64,335/-,the amount as assessed by the surveyor 75% of that amount was ordered to be paid by the appellant insurance company to the complainant respondent with interest @ 9% p.a wef 21.9.07 and further to pay Rs.2000/- as amount of cost of litigation.


It arises in the following circumstances:


That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum,Bikaner on 23.11.06 interalia stating that his Tata Specio vehicle bearing registration no.RJ.07/T.A.9985 was got insured with the appellant insurance company

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for a sum of Rs.4,37,984/- for the period 13.10.05 to 12.10.06. It was further stated in the complaint that a report was lodged on 25.2.06 with the police station,Loonkaran Singh,District Bikaner by one Sita Ram interalia stating that he was also travelling in the jeep and the jeep was capsized and damaged and on that report case was registered as FIR no.49/06 and the police after investigation had submitted the challan u/s 279,337,304 A IPC against the driver of the vehicle of the complainant respondent. It was fruther stated in the complaint that as a result of that accident the vehicle was damaged and claim was preferred for a sum of Rs.88,154/-,but the claim was repudiated by the appellant insurance company through letter dated 20.7.06 interalia stating that-

1.

that the licence which was being held by the driver of the vehicle was of LMV though he was driving a Light Transport Vehicle and thus that licence was not a valid one
2.

that though the vehicle in question had the capacity to carry 10 passengers only while at the time of accident 11 persons were there,therefore,from that point of view also there was a violation of the terms and conditions of the policy.

Thereafter the present complaint was filed.


A reply was filed by the appellant insurance company on 23.7.07 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 20.7.06 and it was prayed that the claim was rightly repudiated through admitting the fact that the surveyor, Shri Subodh Sobat in his report dated 24.6.06 had assessed the loss to the tune of Rs. 66,500/-.


The District Forum after hearing both the parties,through the impugned order dated 18.6.08 had treated the claim of the complainant respondent as sub standard interalia holding -

1.

that so far as the fact that the passengers in the vehicle were more than ten was not found established by the appellant insurance

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company

ii) that no doubt,at the time of accident,the driver of the vehicle was having a licence of LMV though he was driving a Light Transport Vehicle,therefore,for that the District Forum had come to the conclusion that the repudiation of the claim in toto by the appellant insurance company was not justified .


Aggrieved from that order,this appeal has been filed by the appellant insurance company.


In this appeal,the main contention of the learned counsel for the appellant insurance company is that as per the law of today when the vehicle in question was being driven by a person who was having a licence of LMV,though the vehicle in question was a LTV,therefore,it had amounted to violation of the terms and conditions of the policy and thus the claim was rightly repudiated and the findings recorded by the District Forum by which the claim was treated as sub standard be quashed and set aside and appeal be allowed. The learned counsel for the appellant has placed reliance on a judgement of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. V. Meena Aggarwal reported in 2009(1)TAC.809(S.C).


On the other hand,the learned counsel for the complainant respondent has supported the impugned order.


We have heard the learned counsel for the parties and perused the record.


In this case,there is no dispute on the point that the vehicle in question had not met with an accident with any other vehicle and the same was capsized while being driven by the driver who was having a licence to drive only LMV though the vehicle in question was a Light Transport

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Vehicle.


Thus in the facts and circumstances just narrated above,the question for consideration is whether the findings recorded by the District Forum by which the claim was treated as sub standard could be sustained or not;


Taking into consideration that the accident in the present case had taken place when the vehicle in question was capsized and the same had not collided with any offending vehicle,therefore,rejecting the claim on ground of licence in toto,was not justified and the District Forum had rightly treated the claim as sub standard.


Had the vehicle in question would have been Heavy Motor Vehicle and if the licence was of LMV, in such a case; claim could be repudiated in toto,but since there is a minor distinction between the two vehicles known as LMV and LTV,therefore,the claim should be treated as sub standard in place of repudiating the claim in toto.


It may be stated here that in the present case driving a vehicle of LTVwith a licence of LMV,the misuse of that, might be somewhat irregular in nature but not so fundamental in nature as to put an end to the contract unless some other factors compelled to do so.


For reasons as stated above,the findings recorded by the District Forum by which the claim of the complainant respondent was treated as sub standard are liable to be confirmed one.


So far as the law laid down by the Hon'ble Supreme Court in the case supra is concerned,since in that case the Hon'ble State Commission and Hon'ble National Commission have not practically indicated any


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reason for coming to the conclusion that there was no fundamental breach of the terms and conditions of the policy,but in the present case this Commission is of the view that the distinction between the two- LMV and LTV is of so minor in nature and further since the vehicle in question was capsized and had not met with an accident with another vehicle,therefore,in such a case repudiation of the claim in toto would cause injustice and taking that aspect into consideration,this Commission is upheld the findings recorded by the District Forum by which the claim was treated as sub standard as they do not suffer from any basic infirmity or illegality or perversity and this appeal deserves to be dismissed.


The result is that this appeal filed by the appellant insurance company is dismissed.




Member President