KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO.775/2011

JUDGMENT DATED : 24.04.2012

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

Meenakshi.M,

T.C.No.43/341, Mani Bhavan,

Balavan Nagar, Vallakkadavu,                            : APPELLANT

Thiruvananthapuram.

(By Adv: Sri. Anayara G. Rajendran, D.Anilkumar & Others)

            Vs.

The Divisional Manager,

New India Assurance Company Ltd.,               : RESPONDENT

Palayam, Thiruvananthapuram.

(By Adv:Sri.B.Ashokkumar & N.G.Mahesh)

                                JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellant is the complainant in CC.251/06 in the file of CDRF, Thiruvananthapuram.  The complaint stands dismissed.

2.      It is the case of the complainant that the goods carriage vehicle owned by her and having a package policy with the opposite parties met with an accident on 12.05.2005.  The cost of repairs estimated amounted to Rs.1,88,174.61.  The opposite parties have repudiated the claim.  The driver is authorized to drive any type of vehicle with the unladen weight not exceeding 7500 Kgs.  The unladen weight of the complainant’s vehicle is only 3440 Kgs.  The complainant has sought for an order directing to pay the claim amount.

3.      The opposite parties have filed version contending that the driver was not having an effective driving license to drive a medium goods vehicle at the time of the accident.  The driver was holding only the driving license to drive light motor vehicles.  It will not enable him to drive the medium goods vehicle.  The same was intimated to the complainant.  It is not correct that he is authorized to drive any vehicle with unladen weight not exceeding 7500 Kg.

4.      The evidence adduced consisted of the testimony of PWs1 to 3, DW1, Exts.P1 to P6, D1 to D9.

5.      The Forum has held that the driver was not having the authorization to drive the medium goods vehicle and hence there is violation of policy conditions and therefore the complainant is not entitled for the claim amount.

6.      As per Ext.D3 GD extract the vehicle is described as a parcel lorry.  It is mentioned that according to the driver when he turned the vehicle towards the right to avoid collision with an autorikshaw the vehicle overturned to a depth at the northern side road margin.  The vehicle is an Eicher mini lorry.  It is the contention that the unladen weight of the vehicle is only 3440 Kg and that it is a light motor vehicle and as the unladen weight did not exceed 7550 Kg vide section 2 (21) of the MV Act the driver was having license as well as badge to drive such a vehicle.  The counsel has relied on the decision of the Supreme Court in Ashok Gangadhar Maratha Vs. Oriental Insurance Company Limited (2000) ACJ 319 wherein the Apex Court over ruled the decisions of the State Commission as well as of the National Commission and directed the insurer to pay the claim amount.  It was the case where a Swaraj Mazda Truck, a light motor vehicle was involved in an accident.  The Supreme Court in the above judgment has found that it was not established that the vehicle was having permit for goods carriage as required under section 66 of the MV Act.  It was also found that the vehicle was not carrying any goods at the time of the accident and it weighed less than 6000 Kg.  Hence it was found that in the absence of permit for good carriage and as at the time the vehicle was n