K BALAIAH vs G THIMMAPPA

-AGGRIEVED by the order in CD No. 181 of 2004 on the file of District Forum-Anathapur the complainant preferred this appeal.

THE brief facts as set out in the complaint are that the complainant is the father of the deceased K. Subramanyam and opposite party No. l is the owner of the jeep which was insured with opposite party No. 2. On 5. 4. 1999 at about 7. 30 p. m. when the deceased was travelling in the said jeep, it met with an accident as a result of which Mr. K. Subramanyam sustained severe injuries and died. A case was registered and post-mortem was also conducted. Opposite party No. l, the owner of the jeep had taken personal accident policy with opposite party No. 2 and paid a premium of Rs. 450. The policy is valid from 7. 4. 1998 to 6. 4. 1999. The said personal accident policy covered the inmates of the jeep and opposite party No. 2 has to pay compensation of Rs. 1,00,000. The complainant got issued a legal notice to opposite party Nos. 1 and 2 on 3. 9. 2004 to settle the claim but did not receive any reply. Hence the complaint. Opposite party No. 2 filed counter contending that the complaint is barred by limitation and that the jeep was carrying passengers more than the capacity and, therefore, violated the policy conditions. Opposite party further contended that the driver is not having any driving licence to drive the jeep at the time of accident and that the vehicle was used for hire and, therefore, the repudiation of the policy is justified.

Based on the evidence and pleadings putforward the complaint is dismissed as barred by limitation.

AGGRIEVED by the said order the complainant preferred this appeal. The learned Counsel for the appellant, submitted that the cause of action continue to exist as Insurance Company neither settled nor rejected the claim in spite of legal notice issued to them. The cause of action would be either the event of loss/damage or the date of repudiation since the opposite party did not repudiate the claim; the complaint ought not to have been dismissed it on the ground of limitation. He further contended that it was only after the counter was filed in Motor Vehicle Claims Tribunal on 17. 7. 2003 that the complainant came to know about the said policy.

WE have gone through the material on record. We find force in the contention of the complainant/appellant that since policy was neither settled nor repudiated in spite of service of legal notice there is continuing cause of action. Therefore, we are of the view that the District Forum ought not to have dismissed the complaint on the ground of limitation. Now we address ourselves to the merits of the case. It is not in dispute that the deceased died on 5. 4. 1999 in a Government Hospital at Kalyandurg and that the owner of the shop had taken personal accident policy which is valid from 7. 4. 1998 to 6. 4. 1999 for a policy amount of Rs. one lakh. It is the contention of the opposite party that the jeep was carrying more than necessary number of passengers at the time of accident and that the driver of the jeep was not having valid driving licence and that the jeep was hired. The opposite party had not filed any documentary evidence to substantiate their allegation that there were more number of pasengers in the Jeep violating the policy conditions. We rely on the judgment of the Apex Court in B. V. Nagaraju v. M/s. Oriental Insurance Co. Ltd. Divisional Office, Hassan reported in II (1996) CPJ 18 (SC)=i (1997) ACC 123 (SC), wherein it was held that "carrying of unauthorised passengers by the driver or cleaner of the vehicle without the knowledge of the owner cannot be said to be a breach, unless it has contributed to the cause of accident. " In the instant case, the opposite party did not establish that the accident was caused due to extra passengers being allowed to travel and are therefore responsible for the cause of accident. Their contention that the jeep was hired and that that driver is not having valid driving licence is also not supported by any documentary evidence. The Assistant Administrative Officer of the Insurance Company deposed before the District Forum that he has not filed any records to show that the jeep was taken for hire. We have gone through the FIR which states that 8 passengers were travelling in the jeep. The cause of accident was nothing to do with seven passengers in the jeep including the deceased. Therefore, we see no reason for the Insurance Company in not settling the claim. We set aside the order of the District Forum and allow this appeal directing the Insurance Company to pay the claim amount of Rs. one lakh with interest @ 9% per annum from the date of filing of the complaint till the date of realisation together with costs of Rs. 2,000. In the result, the order of the District Forum is set aside and appeal is allowed directing the OP 2 to settle the claim amount of Rs. one lakh to the complainant with interest @ 9% per annum from the date of complaint till payment together with costs of Rs. 2,000. Time for compliance six weeks. Appeal allowed.