Branch Manager, Oriental Insurance Co. Ltd. vs R.POCHAIAH

THE complainant in OP 910/94 District Forum, Hyderabad insured his vehicle Mahindra Nissan Allwyn Light Motor Goods vehicle of 1990 model with the first opposite party i.e. Oriental Insurance Company from 1990 which was renewed yearly. THE second and third opposite parties are the driver and cleaner of the goods vehicle respectively. On 28.5.1994 during the subsistence of the policy (Ex. A-5) the vehicle met with an accident as it was hit by R.T.C. bus resulting in extensive damage. THE opposite parties 2 and 3 i.e. driver and cleaner respectively informed the complainant, who in turn informed the first opposite party about the accident and the first opposite party appointed a surveyor to do the preliminary work. On the advice of the first opposite party, the complainant submitted a quotation Ex. A-11 from Star Everest Motor works Secunderabad for repairs tentatively at Rs. 1,04,835/- and when the complainant submitted an estimate the first opposite party ''X'' marked some items and the complainant purchased parts which were not ''X'' marked and submitted the bills in September, 1994 as evidenced by Exs. A-12 to A-23 for a sum of Rs. 72082/- including the bill for Rs. 3237/- i.e. Ex. A-23 for purchase of ignition switch and cluster assembly with meters. THE first opposite party on 20.12.1994 as evidenced by Ex. A-9 asked the complainant to produce the driving licence of opposite party No. 3. After submission of the documents of opposite party No. 3, the first opposite party on 3.8.1995 as evidenced by Ex. A-24 intimated the complainant that the driving licence of the opposite party No. 3 is not genuine and as opposite party No. 3 was driving the vehicle without having a valid licence, it repudiated its liability and treated the claim as closed.

ALLEGING that the second opposite party is the driver appointed by the complainant and was driving the goods vehicle at the time of accident, but when people gathered he ran away and the third opposite party under pressure from the police and also being afraid stated that he was driving the vehicle at that time and hence the repudiation of the liability of the opposite party is un-sustainable, the above complaint was filed claiming a sum of Rs. 1,08,072/- inclusive of the amount of Rs. 3237/- with interest at 24% p.a. from the date of accident till payment, compensation of Rs. 20.000/- for physical strain and mental agony and for costs of Rs. 3000/-. The first opposite party put in appearance through its Counsel, but subsequently remained absent and was set ex-parte.

The second opposite party appeared in person, but subsequently he was set ex-parte.

THE third opposite party filed a counter stating that at the time of the accident he was on the said vehicle as cleaner and the second opposite party was driving the vehicle and within no time many people gathered there and the opposite party No. 2 left the spot and that under fear and pressure of police he gave a complaint mentioning that at the time of the accident he himself was driving the vehicle and he was also having a driving licence. Subsequently the opposite party No. 3 also remained absent. The complainant filed his affidavit and got marked Exs. A-1 to A-24.

THE District Forum held that the circumstantial evidence proves that the second opposite party alone was driving the said vehicle at the time of the accident. THE circumstances relied upon are that after the accident, the second opposite party abandoned the vehicle and fled away from the scene of the accident and when police of P.S. Ghatkesar arrived at the scene of accident, they found only the opposite party No. 3 near the vehicle. Since opposite party No. 2 was at the time of the accident, there is no reason for running away from the place of the accident, and had the third opposite party been driving the vehicle when it met with an accident, the third opposite party would have run away from the scene of offence and not the second opposite party, and that the second opposite party surrendered himself to the police, Ghatkesar on 22.9.1994 and gave a statement admitting that he was driving the said vehicle at the time of the accident, but immediately after the accident as public gathered, he left the spot. As the third opposite party was found at the scene of accident by the investigating agency, and by fear and pressures prevailing upon to give complaint as if he was driving the said vehicle, he gave the same. THE opposite party No. 1 merely relied on the report ''given to the police and did not examine all the facts which were brought to its notice and also did not apply its mind with the totality of the circumstances including the absconding of opposite party No. 2 from the scene of accident, that the opposite party No. 2 was appointed to drive the vehicle of the complainant and that he was in the said vehicle at the time of the accident and as the first opposite party did not make any independent enquiry except merely relying on the reports given by the third opposite party to the police, the District Forum held that there is deficiency of service on the part of the opposite party No. 1. Even otherwise the District Forum held, since the second opposite party was appointed as driver by the complainant and that the complainant never permitted or authorised the second opposite party to permit the third opposite party to drive the vehicle, the complainant cannot be deprived of the claim for compensation unless the first opposite party proves that the insured committed breach of the conditions of the policy. It relied on the decision of Supreme Court of India in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and Others reported in AIR 1987 Supreme Court 1184, wherein their Lordships of the Supreme Court of India observed as follows: "It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is "guilty" of the breach of the promise that the vehicle will be driven by a licenced driver. It must be established by the Insurance Company that the breach was on the part of the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot be escaped from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the Insurer is guilty of any breach. And it is only in case of a breach or a violation of the promise on the part of the insured that the insured can hide under the umbrella of the exclusion clause".

Since the complainant placed the said vehicle in charge of opposite party No. 2 who may subsequently appoint another person for driving the vehicle at the time of the accident and as he had a valid and effective driving licence, and even if the third opposite party was driving the vehicle unauthorisedly without the permission of the insured, the complainant cannot be deprived of his claim under the policy. It accordingly directed the opposite party No. 1 to pay to the complainant after allowing 15% depreciation on parts a sum of Rs. 72,082/- with interest at 18% p.a. and further sum of Rs. 26180/- with interest at 15% p.a. from 1.11.1994 till realisation and dismissed the complaint against the opposite parties 2 and 3.

IN this appeal preferred by the first opposite party, it is submitted that the third opposite party is not having a valid driving licence and therefore the INsurance Company rightly repudiated its liability.

BUT it is to be seem, the District Forum rightly relied on the decision of the Supreme Court of India and held that since the complainant appointed the second opposite party as a driver and did not authorise him to permit the third opposite party to drive the vehicle, it cannot be said that the insured is guilty of any breach. Moreover the first opposite party did not file a counter and remained ex-parte and in the absence of evidence adduced by the first opposite party to show that there is a breach of conditions of the policy and that the third opposite party is actually driving the vehicle, we are not inclined to interfere with the order of the District Forum. We are of the view that the circumstances mentioned by the District Forum indicate that the vehicle was actually driven by the second opposite party only at the time of the accident. Even with regard to quantum of compensation, the finding of the District Forum was based on the bills, which were produced by the complainant with regard to which the first opposite party did not raise any dispute before the District Forum. We are therefore satisfied that the appeal is devoid of merits, and it is accordingly dismissed. In the result, the appeal is dismissed accordingly. There shall be no order as to costs in this appeal. Appeal dismissed.