NEW INDIA ASSURANCE COMPANY LIMITED Vs. P JAYARAJ

JUDGEMENT

(1.) F. A. I. A. No.34/1999 is an application for condoning the delay in presenting the appeal, F. A. S. R. No.62/1999, by the opposite party in C. D. No.159/1998 questioning the order of the Cuddapah District Forum dated 24.10.1998. It is stated in the affidavit in support of the F. A. I. A. No.34/1999 that the copy of the order of the District Forum was received by the petitioner/ appellant on 11.11.1998 itself. Thus the last date for presenting the appeal was 11.12.1998. The appeal was presented on 13.1.1999. The reason for the delay was stated in the affidavit as follows : "legal opinion was sought from the Advocate, which was received by the Divisional Office only on 22.12.1998. The file was then sent to the Regional Office on 30.12.1998. It was opined to file an appeal and the case was sent to the Advocate on 9.1.1999 and the appeal is being preferred without any further delay. " We find that there was remissness on the part of the persons concerned in not assiduously avoiding delay after the copy of the order was received on 11.11.1998. Even after the opinion was given by the Advocate, no effort was made to present the appeal without any further delay by 11.12.1998. There was total disregard of the statutory requirement that the appeal should be presented within thirty days and there was no endeavour to present the appeal by 11.12.1998. Absent, diligence and prompt action for presenting appeal within time, sufficient cause for delay to be ruled out. On the facts of the present case we find that sufficient cause is not made out for condoning the delay.

(2.) F. A. I. A. No.34/1999 is therefore dismissed and consequently F. A. S. R. No.62/ 1999 is rejected.

(3.) We have gone through the order of the District Forum for satisfying ourselves about its legality and regularity. The District Forum found that at the time when the accident occurred, the tractor drawing loaded trailer was being driven by one Arogya Varaprasad, who was not having any driving licence and that one S. Maqbul Basha, the driver, was present on the vehicle but he was not driving the vehicle. However, the District Forum held that that could not be a ground for the opposite party rejecting the claim of the complainant based on the insurance policy taken by him from the opposite party. In holding so, the District Forum sought to rely upon decisions of the High Court of Andhra Pradesh in The New India Assurance Company Limited V/s. Koppula Nagamani and Ors. , (1) 1997 ALT 819=1997 (2) ALD 96, and Ankinapalli Yanadamma and Ors. V/s. G. Sreenivasulu Reddy and Anr. , (1) 1997 ALT 259=1997 (1) ALD 643 and P. Naguru and Anr. V/s. S. Krishnama Raju and Anr. , (4) 1996 ALT 630=1997 (1) ALD 85. All these are cases relating to claims by third parties involved in motor vehicle accidents based in tort for negligent driving of the vehicles and they arose before the Motor Accident Claims Tribunals. The principles laid in those cases were approved by the Supreme Court in Sohan Lal Passi V/s. P. Sesh Reddy and Ors. , II (1996) ACC 617 (SC)=air 1996 SC 2627= (1996) 5 SCC 21. That was also a case where the third party claim raised before the Motor Accident Claims Tribunal was sought to be repudiated by the Insurance Company on the ground that the vehicle which was the cause of the accident was being driven by a person not holding a valid driving licence and therefore there was violation of condition of insurance policy and therefore it was not liable to reimburse or indemnify the insured. In the present case no third party claim in tort is involved. The complainant was the insured himself resting his claim on the contract of insurance. We had occasion to consider whether the decision of the Supreme Court in Sohan Lai Passi V/s. P. Sesh Reddy and Anr., would be attracted to such cases. In E. Lakshmanna V/s. Divisional Manager, United India Insurance Company Limited, Chittoor and Anr. , 1999 ALD (Consumer) 57, we held that the decision did not govern such cases. We held as follows in that case : "in that decision of the Supreme Court the claimants were the legal representatives/ dependants of a person who was killed in an accident caused by the negligence of the driver of a bus which was insured with the Insurance Company. The claim was in tort. The Insurance Company contended that as the bus was being driven by the cleaner/ conductor who Was not holding any driving licence, it was absolved of its liability under the policy and that the owner of the bus, who was the insured, alone was liable. The Supreme Court rejected that contention on the ground that the owner would be bound by what its agent did and in that case the driver of the vehicle, who was entrusted the vehicle by the owner, allowed the cleaner/conductor to drive the vehicle and therefore the owner was bound by his agent's act i. e. , the driver's act on the principle of vicarious liability. Under those circumstances the Supreme Court held that the Insurance Company could not escape its liability in respect of the compensation to be paid to the third parties claiming on the basis of an accident, which occurred due to the negligence of the driver. That principle is not attracted to the facts of the present case. In the present case the insured relies on his own policy and the insurer disclaims the liability on the basis that the insured had violated the conditions of the policy by entrusting the vehicle to a driver not having valid licence. " The learned Counsel for the complainant sought to rely on the decision of the Supreme Court in B. V. Nagaraju V/s. M/s. Oriental Insurance Company Limited, Divisional Office, Hassan, 1996 4 SCC 647. That was also not a case where any negligence on the part of the driver was imputed and it was not contended that the accident was caused by the driver. The accident was caused by head-on collision by a vehicle coming from the opposite direction. The contention raised by the Insurance Company in support of its repudiation of the claim of the insured (who was the owner of the vehicle involved in the accident) was that the vehicle was carrying certain unauthorised passengers which violated a condition of the Insurance Policy and that therefore repudiation was justified and valid and did not result in deficiency in service. That was rejected by the Supreme Court. , The Supreme Court specifically observed in that case as follows : "here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. " These observations of the Supreme Court clearly enunciated the parameters within which the principle laid by the Supreme Court in that case would be attracted. Unless violation of a condition in the contract of insurance amounted to fundamental breach or contributed in a direct causal way to the accident, the insured cannot be deprived of the cover. In the present case the person driving himself was responsible for the accident which resulted in the vehicle going topsy-turvey and it cannot be said that he was in no way responsible for the accident. It is in that context that his not being a qualified driver and was not possessing a driving licence would become very relevant and material. We therefore find that the District Forum erred in allowing the claim.