State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance ... vs Uttamrao Babu Puri, on 26 November, 2013
1 F.A.No. :726 & 727/2007
Date of filing:02.07.2008
Date of order:26.11.2013
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
1)FIRST APPEAL NO.: 726 OF 2007
IN COMPLAINT CASE NO. : 277 OF 2007
DISTRICT FORUM : OSMANABAD.
Bajaj Allianz General Insurance Co.Ltd.,
Through its Divisional Manager,
Rajendra Chambers,
Aurangabad. ...APPELLANT
VERSUS
Uttamrao Babu Puri,
R/o Arali(Kh.) Taluka Tuljapur,
Dist.Osmanabad. ...RESPONDENT.
2)FIRST APPEAL NO.: 727 OF 2007
IN COMPLAINT CASE NO. : 280 OF 2007
DISTRICT FORUM : OSMANABAD.
Bajaj Allianz General Insurance Co.Ltd.,
Through its Divisional Manager,
Rajendra Chambers,
Aurangabad. ...APPELLANT
VERSUS
Uttamrao Babu Puri,
R/o Arali(Kh.) Taluka Tuljapur,
Dist.Osmanabad. ...RESPONDENT.
2 F.A.No. :726 & 727/2007
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.S.G.Chapalgaonkar for appellant, Adv.Shri.M.B.Kolpe for respondent.
O R A L JUDGMENT (Delivered on 26th November 2013) Per Mrs.Uma S.Bora, Hon`ble Member.
1. Bajaj Allianz General Insurance company Ltd. through Divisional Manager challenges in both these appeals order passed by District Consumer Forum Osmanabad while allowing complaint case No.277/2007 and 280/2007 on 5.5.2008.
2. Both these appeals are related to the common issue therefore we have decided both these appeals by one judgment and order.
3. The facts of the case in a nutshell are as under.
Complainant Shri.Uttamrao Babu Puri, is R/o Arali Khurda, Tq.Tuljapur, Dist.Osmanabad. The son of complainant Ashok Puri had purchased Bajaj Platina motor-cycle bearing No.MH-25/C-4116 in January 2007. For the same motor-cycle complainant took the insurance with the personal accidental cover for owner-cum-driver vide policy No.OG-07-2001-1802-000052356. The said policy was for the period 18.1.2007 to 17.1.2008. On 1.2.2007 policy holder Ashok had went to R.T.O. office for passing of said motor-cycle and while returning from R.T.O. one truck bearing NO.GJ-06/8142 gave dash to the motor- cycle of Ashok and in the said accident Ashok died on spot and accordingly Cr.No.33/2007 was registered in Police Station, Osmanabad.
3 F.A.No. :726 & 727/2007After the said accident father of deceased Ashok preferred claim with appellant insurance company claiming the damages of motor-cycle as well as sum insured in respect of deceased Ashok. Both the claims were repudiated by the appellant on the ground that the claims are not maintainable as at the time of accident deceased Ashok was possessing learner's license only. Dissatisfied with the repudiation complainant approached to the Forum and claimed damages of the motor-cycle as well as sum assured in respect of personal accident of the deceased Ashok.
4. Opponent appeared before the Forum and resisted the complaint on the ground that at the time of accident deceased Ashok was not having permanent driving license. He was holding learner's license at the time of accident and he alone was driving motor-cycle. It is also stated by the appellant that motor-cycle was not having the sign of ' L' on front & rear side of the motor-cycle. Therefore appellant rightly repudiated the claim of the complainant.
5. After hearing both the parties District Consumer Forum directed appellant to pay Rs.1 lakh with 9% interest from 6.12.2007 till realization of the amount in respect of death of Ashok and Rs.6088/- with 9% interest from 6.12.2007 in respect of damages to the motor- cycle.
6. Dissatisfied with the said order original opponent came in appeal.
7. Adv.Shri.S.G.Chapalgaonkar appeared for appellant, Adv.Shri.M.B.Kolpe appeared for respondent. It is submitted by Adv.Chapalgaonkar that deceased Ashok had obtained policy No. OG-07- 2001-1802-00052356 for the period 18.01.2007 to 18.01.2008 in respect of owner-cum-driver and for the motor-cycle. It is submitted by 4 F.A.No. :726 & 727/2007 Adv.Chapalgaonkar that at the time of accident i.e. on 1.2.007 deceased Ashok alone was driving the motor-cycle. Rule 3 of the Central Motor Vehicle Act 1989 reads as under.
(i) Such person is holder of an effective learners license issued to him in Form 3 to drive the vehicle;
(ii) Such person shall be accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is sitting in such position to control and stop the vehicle; and
(iii) There is painted, in the front and rear of the vehicle oron a plat or a card affixed to front and rear, the letter'L' in red on the white background.
8. It is submitted by Adv.Chapalgaonkar that after getting intimation about the said accident surveyor was appointed by the appellant to inspect the vehicle and assessed the loss. But when the documents required to assess the loss were asked from the complainant and on perusal of said documents it was found that deceased Ashok was possessing learners license only. He had not obtained permanent driving license. It has also came to knowledge of surveyor that at the time of accident other person holding permanent driving license was not traveling on the motor-cycle, was not seated on the motor-cycle. It is also found that vehicle in question was not bearing 'L' mark in the red ink on front and rear side which is essential as per Motor Vehicle Act. Therefore after considering said facts appellant rightly repudiated the claim of the complainant. But District Consumer Forum by ignoring legal position and without appreciating the evidence produced before it committed error in allowing the complaint.
9. In support of his contention he relied on New India Assurance Co. Ltd. -Vs- Mandar Madhav Tambe and others, AIR 1996 Supreme Court 5 F.A.No. :726 & 727/2007 1150, wherein it is held by Apex Court that insurance policy making insurance company liable only when vehicle in question was driven by person holding driving license other than learners license-insurance company not liable for paying compensation-person having learners license cannot be regarded as duly licensed. He has also relied on judgment of this Commission in F.A.No.579/2008 decided on 15th January 2013.
10. Adv.M.B.Kolpe submitted that the deceased had obtained the policy for damages of motor-cycle as well as for personal accident. It is the fact that the accident had occurred because of dash given by truck to the deceased and not due to fault of deceased. Therefore District Consumer Forum rightly considered the fact while allowing the complaint. Therefore appeal be dismissed.
11. We heard counsel for both sides and perused the record. It is an admitted fact that deceased Ashok had obtained insurance policy for owner-cum-driver and for damages of the motor-cycle. It is also admitted fact that at the time of accident deceased Ashok alone was driving motor-cycle. It is also admitted fact that deceased Ashok possessing learners license and not permanent driving license. In our view a person would be regarded as duly licensed only if he has obtained license under Chapter II of the Motor Vehicle Act and person who has obtained temporary license which enable him to learn driving cannot be regarded as having permanent license. Section 3 of the Central Motor Vehicle Act clearly explained that the person who is holding learners license is to drive the vehicle with instructor or with person who is holding permanent driving license. It is also obligatory under Motor Vehicle Act to paint 'L' mark on the front and rear side of the vehicle when person holding learners license to drive the vehicle. In the present case it is seen that deceased Ashok was not having permanent driving 6 F.A.No. :726 & 727/2007 license at the time of accident and he alone was driving vehicle. It is also seen from the record that at the time of accident vehicle in question was not painted with 'L' mark on front and rear side. In our view District Consumer Forum ignored the said fact while allowing the said complaint. Finding recorded by Forum are without foundation and hence are required to be quashed and set aside. Hence, O R D E R
1. Appeals are allowed.
2. The impugned judgments and orders passed by District Consumer Forum are hereby quashed and set aside.
3. Complaints stand dismissed.
4. No order as to cost.
5. Copies of the order be sent to both the parties.
K.B.Gawali Uma S.Bora, S.M.Shembole, Member Member Presiding Judicial Member Mane