Bajaj Allianz General Insurance Co. Ltd.,
This is a discussion on Bajaj Allianz General Insurance Co. Ltd., within the Judgments forums, part of the General Discussions category; H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9. F.A. No. 158 of 2009 Decided on 7.7.2009. Bajaj Allianz General Insurance Co. Ltd., ...
- 08-31-2009, 01:06 PM #1
Bajaj Allianz General Insurance Co. Ltd.,
H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
F.A. No. 158 of 2009
Decided on 7.7.2009.
Bajaj Allianz General Insurance Co. Ltd.,
Through Senior Legal Executive
SCO 139-140, Sector 8-C, Chandigarh. .....Appellant.
Nishant Thakur S/o Sh. Roshan Lal,
R/o Village Kaloud, Tehsil Sunder Nagar,
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
Hon’ble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting ?
For the Appellant. Mr. Chandan Goel, Advocate.
For the Respondent. Mr. C.S.Thakur, Advocate.
Per Mr. Chander Shekher Sharma, Member.
1. This appeal is directed against the order of District Forum, Mandi, in Consumer Complaint No. 7/2008 dated 10.4.2008. District Forum below has directed the appellant to pay Rs. 1,16,963/- to the respondent as own damage claim, with interest @ 9% per annum from the date of institution till payment, with cost assessed at Rs. 2000/-.
2. Facts of the case that emerge from the record are, that the respondent is the registered owner of Mahindra Max Pick up 2WD vehicle No. HP-31B-0561. This vehicle was insured with the appellant-Insurance Company for a sum of Rs. 3,50,000/- under comprehensive insurance cover for the period from 23.7.2007 to 22.7.2008. On 1.10.2007, the vehicle met with accident and was damaged. Respondent lodged claim with the appellant for the damage caused to the vehicle due to accident. This was rejected on the ground that the driver of the vehicle who was driving it at the time of accident was not holding a valid and effective driving licence to drive it. Hence respondent filed the complaint before the District Forum below claiming Rs. 1,80,663/- with interest @ 12% per annum from the date of filing of the complaint till payment of the claim and Rs. 50,000/- as compensation.
3. Appellant-Insurance Company filed its version to the complaint alleging therein that claim of the respondent had been rightly repudiated since driver at the time of accident of the vehicle was not having a valid and effective licence to drive a transport vehicle, violation of the terms and conditions of the insurance policy was also set out as a defence. As the driver in terms of policy conditions was supposed to have valid and effective driving licence, as per Rule 3 of the Central Motor Vehicle Rules, 1989.
4. Brief resume of the evidence of the appellant in nut-shall is, that the respondent in the present case had filed affidavit in support of the his claim and attached number of documents with the complaint viz. (i) copy of FIR, (ii) Copy of registration certificate, (iii) copy of Motor Vehicle Cover Note, (iv) copy of certificate Policy Schedule, (v) copy of learner’s licence, (vi) copy of P.G.D.No.-9 Challan, (vii) copy of driving licence, (viii) copy of letter dated 8th December, 2000 addressed by the appellant to the respondent whereby his claim was repudiated and photocopy of the repair bills of Naveen Auto Store, Ghumarwin, dated 2.12.2007. Appellant in the present case had filed affidavit of Naresh Dhiman, Manager, at its Mandi branch besides surveyors report Ex. “CA.”
5. We have heard learned counsel for the parties, and have also gone through the record of the case file. Mr. Goel, learned counsel for the appellant argued that there is no deficiency of service on the part of his client since the respondent was not having a valid and effective licence at the time of accident and as such his claim was rightly repudiated. Due to violation of the terms and conditions of insurance policy and also of the provisions of the Motor Vehicles Act, 1988 and Rules, repudiation was justified. He had also placed reliance on following decisions :-
1. National Insurance Co. Ltd., V/s Laxmi Narain Dhut (2007) 3 Supreme Court Cases 700.
2. National Insurance Company Ltd., V/s J Maheshwaramma, II (2009) CPJ 89 (SC).
6. Mr. C.S.Thakur, learned counsl for the respondent has supported the order of District Forum below and argued that there was deficiency of service on the part of the appellants since the respondent was having a valid and effective licence at the time of accident and following case law had been cited.
1. National Insurance Co. Ltd., V/s Swaran Singh and Ors., (2004) 3 Supreme Court Cases 297.
2. National Insurance Co. Ltd., V/s Bhagwani and Others (2004) 3 SCC 347.
7. After considering the submission of both the parties as well also going through the record of the case we are convenienced that the order of District Forum below is not sustainable in law, because since the respondent was not having a valid and effective driving licence to drive a transport vehicle at the time of accident. Section 3(1) of the Motor Vehicles Act, 1988 deals with the mandatory requirement regarding having a driving licence is to the following effect :-
“ (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle ; and no person shall so drive a transport vehicle [other than [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.”
8. In the present case as per evidence on record the respondent was only having valid licence upto 20.12.2022, that to for Light Motor Vehicle (Non Transport), and also having a learner’s licence No. LLR/30/2007-2008, it was issued on 12.7.2006 and was valid w.e.f 18.4.2007 to 17.10.2007. In the learner’s licence it had been clearly mentioned that :
“ The attention of the holder of this licence is drawn to Rule 3 of Central Motor Vehicles Rules, 1989 which prohibit him from driving any motor vehicle unless he has besides him a person duly licenced to drive the vehicle and in every case, the vehicle carries “L” plates both in the front and in the rear of the vehicle.”
9. Central Motor Vehicle Rules, 1989 provide for necessary endorsement on the driving licence to drive the vehicle as per endorsement made in the licence. But there was no endorsement on the licence for driving of a transport vehicle in this case.
10. The ruling relied upon by the learned counsel for the respondent viz. in Swaran Singh’s case and Bhawani’s case, which have been followed by the Forum below are not applicable to the facts of present case. In the case of NIC Ltd. V/s Swaran Singh and Ors. cited (supra) is applicable only in case of 3rd party claim, whereas the present is a case of own damage claim. Thus District Forum below erred by placing reliance upon the judgement in NIC Ltd. V/s Swaran Singh and Ors. In case of National Insurance Company Ltd. V/s Bhgawani and Others (2004) 3 SCC 347 Hon’ble Supreme Court held that a person holding the learner’s licence is liable to be treated as holding a valid licence.
11. However, In the present case one fact is clear, that there is clear cut violation of Rule-3 (b) of the Central Motor Vehicle rules, 1989, since respondent was not accompanied by a person who was holding a valid licence to drive the vehile while driving the transport vehicle viz. Mahinder Max Pick Up, on the strength of his learner’s licence. Hence, aforesaid ruling is also not applicable in the present case, for want of anything on record to suggest that respondent was accompained by a duly licenced person at the time of accident.
12. The law laid down by the Apex Court, in the case of National Insurance Company Ltd., V/s Laxmi Narain Dhut 2007 CTJ 445 (SC) (CP) wherein in para No. 40 of the judgement, apex court has held as under :-
“1. The decision in Swaran Singh’s case (supra) has no application to cases other than third party risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured.
4. The concept of purposive interpretations has no application to cases relatable to Section 149 of the Act.”
13. In its latter decision in the case of J Maheshwaramma Hon’ble Supreme Court had referred to the decision of Swaran Singh and then held it was applicable only in case of claim of 3rd party.
14. Hence we are of the view that the findings of the learned District Forum below are not legally sustainable in view of the facts of the case and the legal position explained above, since respondent was not having a valid and effective licence at the time of accident. This is a case of own damage claim filed by the respondent and as such the findings of the District Forum below to the effect that there is deficiency of service on the part of the appellant and also that the respondent was holding a valid effective driving licence, which was liable to be treated as a valid licence is not legally sustainable in view of the legal position explained above.
15. No other point was urged.
16. Hence in view of the aforesaid discussion there is no force in the arguments advanced by the counsel for the respondent. In the light of the above discussion we hold that in the present case it is established on record that the respondent was not holding a effective and valid driving licence at the time of accident as required under law. Consequenty the appellant is not liable to indemnify the respondent. Hence we accept the present appeal and set aside the order passed by District Forum, Mandi, in Complaint Case No. 7/2008, dated 10.4.2008, and dismiss the complaint. In the circumstances of this case leaving the parties to bear their own cost.
17. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel)Retd.
(Chander Shekher Sharma)
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