ORIENTAL INSURANCE COMPANY LTD vs Ch Ramanamma

THE appellant in F.A. No. 84/2003 is opposite party No. 1 in C.D. No. 534/1999 on the file of District Forum, Visakhapatnam.

THE brief facts as set out in the complaint are that the complainant is the owner of lorry bearing No. AP 31 T 8217 Tata make and the same is insured with the first opposite party. Second opposite party is Transport Contractor and Commission Agent with its office at Bangalore. During November, 1997 the lorry was transporting cabbage load from Chikballapur to Bhubaneswar as hired and contracted by opposite party No. 2. For a transport agency within the local limits of Metropolitan city like Bangalore, the driver would be provided by the agent i.e., second opposite party. On 14.11.1997 at about 8.00 p.m. the driver engaged by the second opposite party, namely, A. Ramakrishna, reported while they were near Boodigare cross two persons got inside the truck and wanted to come up to Devanahalle. Thereafter when the truck was stopped near Honasuru gate for attending to natures call, the two unknown persons took away the truck. FIR was lodged and thereafter a claim was made to the opposite party, Insurance Company. A Surveyor was appointed, who stated in his report that the policy conditions were violated since the driver allowed third parties inside the vehicle. In spite of repeated requests, the claim was not allowed. Hence the complaint. Opposite Party No. 1 filed counter contending that the driver had no driving licence and taking unauthorized persons in their vehicle was in violation of the policy conditions. Hence their repudiation is justified and plead that there is no deficiency of service on their behalf.

SECOND opposite party remained ex parte.

BASED on the evidence adduced i.e., Exs. A1 to A11 and Exs. B1 to B7 and the pleadings put forward, the District Forum directed the first opposite party to pay Rs. 1,03,560 with interest at 12% p.a. from the date of claim together with cost of Rs. 1,000. Claim against 2nd opposite party was dismissed. There is also a dissenting order written by the male Member and later the lady Member of the Forum agreed with the finding expressed by the President.

AGGRIEVED by the said order, the first opposite party preferred this appeal.

THE learned Counsel for the appellant submitted that the driver driving the vehicle had no driving licence and he has also violated the terms and conditions of the policy by taking unauthorized passengers inside the vehicle thereby causing loss of the vehicle. On perusal of the material on record, we note that the respondent/complainant handed over the vehicle to driver, who was sent by an agency, All Andhra Lorry Service. The respondent/complainant had no knowledge that the driver had no driving licence. It cannot be inferred that knowing that A. Ramakrishna had no driving licence, the respondent/complainant entrusted the vehicle. No efforts were made by the appellant to know whether the driver supplied by All Andhra Lorry Service is having licence or not. No office -bearer of All Andhra Lorry Service was examined to substantiate their contention that the said driver had no driving licence. It is held by the Apex Court in 2003 CTJ 649 (Supreme Court) (CP) in Jitendra Kumar v. Oriental Insurance Co. Ltd. & Another, that the vehicle in question was damaged due to a mechanical fault and not due to any fault of the driver, so the repudiation of the Insurance Company on the ground that the driver is not having a valid licence at the time of accident in question is wrong. In the instant case there is a theft of the vehicle and the repudiation cannot be made solely on the ground that the driver is not having a valid licence. Also, when the driver himself is not employed directly by the respondent/complainant, it cannot be said that he is responsible for the act of the driver for allowing two persons to get into the lorry.

TAKING all these facts and circumstances into consideration, we are of the opinion that there is no reason to interfere with the well considered majority order of the District Forum. In the result, the appeal fails and is accordingly dismissed. Time for compliance six weeks. Appeal dismissed.