Divisional Manager, National Insurance Co. Ltd. vs Muhammed

THIS appeal is directed against the order passed by the District Forum, Wayanad, Kalpetta, in O.P. No. 96/91. The first opposite party is the appellant,

SHORTLY stated, the allegations in the complaint are as follows ; The complainant is the owner of motor vehicle KIL-4738 and it was insured with the first opposite party Company. It met with an accident on 6.1.89 and it was en- trusted with the second opposite party for repair works and an authorised Surveyor prepared the survey report after inspecting the vehicle and the documents necessary for settling the claim and it was submitted to the first opposite party on 15.3.89. The first opposite party is liable to pay an amount of Rs. 21,142/- to the second opposite party with interest from 15.1.89. There is no ground for repudiating the claim. The second opposite party intimated the fact of repair to the first opposite party but they denied the liability on flimsy grounds, The first opposite party filed a version stating that the accident took place on 6.10.89 and the claim is barred by limitation. The com- plaint is not maintainable and the opposite par- ties repudiated the claim on proper grounds. The Forum has no jurisdiction to entertain the complaint. The vehicle cannot be driven by a driver other than a driver having badge and in the instant case the vehicle was driven by a driver not having badge at the time of accident. It was also averred that the complainant has not authorised the second opposite party to do re- pair work and the first opposite party is not liable to pay any repair charges.

The second opposite party filed a version stating that he was the repairer of the vehicle and submitted repair charges of Rs. 21,142/- but the first opposite party had not discharged the amount of claim.

BEFORE the District Forum the complain- ant was examined as PW 1 and Exts. A 1 to A 5 were marked and on behalf of the opposite parties RW 1 was examined and Exts. B 1 to B 4 were marked. The accident was admitted and the insurance cover was also admitted. The fact that the vehicle was surveyed by the Surveyor was also admitted. The main ground raised by the opposite parties to repudiate the claim is that the complainant was not having badge. The driver was having necessary licence to drive the vehicle. According to the Survey Report, the total amount of compensation payable including towing charges came to Rs. 17,351/-. The District Forum held that the ground mentioned by the first opposite party for repudiation is not valid and in that view it passed an order directing the opposite party to pay a sum of Rs. 17,351/- together with interest at the rate of 12% annum from 6.1.85. Rs. 300/- was also awarded as cost.

FEELING aggrieved by the said order this appeal has been preferred by the first opposite party. Learned Counsel appearing for the appellant submitted that the complaint is barred by limitation stating that the accident took place on 6.1.89 and the complaint was lodged only on 2.5.92 after a lapse of about 3 years and 4 months. The claim is made immediately after the accident and the limitation starts only from the date of repudiation. Therefore this contention is untenable. He however submitted that under Clause 7 of the policy it has been specifically provided that if the first opposite party, the Insurance Company shall disclaim liability to the insured for any claim and such claim shall not be within twelve calendar months from the date of such disclaimer have been made the subject matter of a suit in a Court of law then the claim shall for all purposes be deemed to have abandoned and shall not thereafter be recoverable hereunder. The learned Counsel also submitted that there is a violation of condition and provisions of the Motor Vehicles Act relating to driving licence in that the driver was not having badge. In support of the contention based on Clause 7 of the policy, learned Counsel also invited our attention to a decision of the National Commission in M/s. Paras Textile v. The New India Assurance Co. Ltd., I (1993) CPJ 126 (NC), where the National Commission held that a similar clause is not void under the Law of Limitation or Law of Contract and the appellant having abandoned their right by not filing a suit or taking any action within 12 months from the date of repudiation of their claim by insured, the Company is not under any liability to pay the claim to the insurer under the policy.

NO doubt this decision supports the contention of the appellant. However we do not find any such ground taken in the version. In the appeal memorandum also no such contention is taken. In this context we may refer to the decision of the National Commission in Shree Chamudi Mopeds Ltd. v. Mumbai Grahak Panchayat, II (1992) CPJ 514 (NC)=1991 (2) CPR 117, where the National Commission held as follows: "The question of limitation is a question of law and fact and unless basic facts are put forward in the pleadings before the Trial Court, the Appellate Court will not entertain for the first time a plea of limitation for which the factual foundation has not been laid before the lower Court."

CONSTRUING a similar provision in Food Corporation of India v. The New India Assurance Co. Ltd. & Others, 1994 (3) Supreme Court C 342, the Supreme Court observed as follows: "If such provision is held to be a bar to file a suit or taking any proceedings after the period stipulated in the policy that would be void being opposed to Section 28 of the Contract Act". In the light of this decision, we feel that the decision of the National Commission on this point has to be considered no longer as good law. We therefore reject this contention. Then the only remaining question to be considered is whether the claim can be rejected on the ground that the driver did not have the badge.

On behalf of the opposite party the Branch Manager was examined as RW 1 and though he stated in the chief examination that they are not liable to indemnify the insured for want of badge for the driver in the cross-exami nation he stated that they used to indemnify the insured. In the cross-examination he also stated that the Court may pass orders to indemnify the insured. In this context we may also refer to the decision of the Division Bench of the Gauhati High Court in Assam and Meghalay a State Road Transport Corporation, Gauhati v. Abdhul Razak, AIR 1988 Gauhati 57, where their Lordships made the following observations: "Public body should resist the temptation to litigations like cantankerous litigants for insignificant amount raising technical pleas. This is precisely what the Supreme Court has said in Trustees Bombay v. Premier Automobiles, AIR 1974 SC 923=(1974) 4 SCC 710, Public Institution convict themselves of untrustworthiness out of their own mouth by fighting litigation. In State of Punjab v. Darshana Devi, AIR 1979 SC 855, where the Haryana Government had at least a case but they instead of settling similar claim preferred an appeal to the Supreme Court; whereupon their Lordships observed that the State has unhappily failed to recall its obligations under Art. 47 of the Constitution to render public assistance without litigation in case of disablement and undeserved want".

THE driver had necessary licence to drive the vehicle and in the circumstances we do not find that the absence of badge can be considered as violation of the policy for repudiation of the claim. Foregoing discussion would show that there is no merit in the appeal. It is accordingly dismissed. We direct the opposite parties to pay the amount within one month from today. Appeal dismissed.