State Consumer Disputes Redressal Commission
National Insurance Company Limited. vs Lalit Kumar Jhabak on 6 August, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/152
Instituted on : 28.03.2012
National Insurance Company Limited,
Branch Office - Rajnandgaon (C.G.) ... Appellant.
Vs.
Lalit Kumar Jhabak, S/o Late Shri Pukhraj Jhabak,
Address : Bharat Mata Chowk,
Rajnandgaon, District Rajnandgaon (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Vinod Deshmukh, for appellant.
Shri R.K. Bhalwnani, for respondent.
ORAL ORDER Dated: 06/08/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against, order dated 25.02.2012 of District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (hereinafter called "District Forum" for short), passed in Complaint Case No.14/2010, whereby the appellant/Insurance Company, has been directed to pay within two months, 75% of the assessed loss of Rs.1,02,000/- to the vehicle, which comes out to be Rs.76,500/- on the basis of calculation on non-standard basis, as driver of the insured vehicle was not having valid driving licence at the relevant time, // 2 // along with interest @ 6% p.a. w.e.f. 03.04.2008 till date of payment, otherwise the aforesaid amount would be payable, along with interest @ 9% p.a. from the date of order. The appellant/Insurance Company felt aggrieved by this order and preferred this appeal challenging the finding of District Forum that compensation is payable on non-standard basis even in cases when driver of the vehicle, was not having valid and effective driving licence.
2. In nutshell, the facts of the case are that a vehicle Maruti Omni Van bearing No.C.G.08/5048, was insured by the appellant/Insurance Company at the relevant time. It suffered a road accident on 08.08.2006 in the night about 11.30-12.00, near Dhamtari Forest Check Post, when it was being driven by driver, Shri Radheshyam Sharma and struck it against an electricity pole, resulting in damages to the vehicle. The incident was reported to the Insurance Company. A Surveyor was appointed by the Insurance Company, who assessed loss of Rs.1,02,000/- to the vehicle, but the Insurance Company repudiated the claim on the ground that driver of the vehicle, was not having valid and effective driving licence at the relevant time, so consumer complaint was filed before District Forum for seeking compensation, which was contested by the Insurance Company on the same defence.
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3. Learned District Forum, in paragraph No.7 of the impugned order has held that driving licence of driver, Shri Radheshaym Sharma, bearing No.R-12715/R/2000, was not effective, as it was not renewed at the relevant time. It has further been observed by the District Forum that it was merely a technical mistake and though driving licence of the driver was not renewed, but even then driver was having capacity of driving the vehicle and there is no evidence to the effect that the incident happened on account of any negligence on the part of driver, so, the Insurance Company is liable to pay compensation on non-standard basis.
4. Learned counsel for the appellant/Insurance Company submitted that aforesaid finding of the District Forum, is not sustainable in law because the condition regarding the driver having valid and effective driving licence, was one of the essential conditions of the insurance contract and breach of that condition comes in the category of material breach of the insurance contract and, so the Insurance Company, is not liable to pay any compensation to the respondent/complainant.
5. To counter aforesaid arguments, learned counsel for the respondent/complainant submitted that from the two Certificates of R.T.O. regarding driving licence of the driver, available in the record of the District, one of which shows that driver was having effective // 4 // driving licence at the relevant time. He further submitted that photocopy of the driving licence of driver (Annexure OP-7) is also having endorsement on its back to the effect that it was valid upto 30.06.2010 and was renewed on 01.05.2005. He submitted that this endorsement shows that the driving licence was lawfully renewed and was valid on the date of incident.
6. It is not in dispute that driver, Shri Radheshyam Sharma, who was driving the vehicle in question at the relevant time, had died and is no more available. All the five persons, who were boarding in the vehicle at the relevant time including driver had lost their life in the incident. Photocopy of driving licence of driver, Shri Radheshyam Sharma (Annexure OP-7), which is available in the record of the District Forum, is in two pages. One page is having the name and address of the driver and his photograph, but in the overleaf, there is another photocopy of portion containing endorsements that second page of the photocopy which is on the overleaf, is neither having name and address of the driver nor licence no. It is difficult to digest that this particular entry was also made in respect of driving licence of driver, Shri Radheshyam Sharma, particularly when a specific Certificate (Annexure OP-12) has been given by the R.T.O. Raipur to the effect that the driving licence of driver, Shri Radhey Shyam Sharma, bearing No.R-12715/R was issued on 31.08.1984, which was // 5 // renewed from time to time, firstly on 05.05.1990, when it had already expired on 30.08.1989. Thereafter it was again renewed on 04.05.1995 within period of its currency and again on 04.05.2000 it was renewed within period of its currency for a period of five years when it had expired on 04.05.2005. Thereafter there was no entry of its renewal. When this specific Certificate has been given by the R.T.O. Raipur (C.G.) and there is no material on the basis of which it can be said that this Certificate was not according to the entries available in the record of R.T.O. Raipur (C.G.), then it can safely be said that the entry on overleaf in the second page of photocopy of the driving licence, is not in respect of driving licence of Shri Radheshaym Sharma and this Certificate clearly proves that the driving licence, was not renewed after 04.05.2005. So, on the date of incident, driver of the vehicle, Shri Radheshyam Sharma, was not having valid and effective driving licence to drive the vehicle in question.
7. In the policy document Schedule Annexure A-1, it has been clearly agreed between the parties that so far as any person including insured can drive the vehicle if he holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. It has further been provided that the person holding an effective Learner's Licence may also drive the vehicle and // 6 // such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989.
8. Thus, as per conditions of the policy, the requirement was that person, who drives the vehicle at the time of accident, must have an effective driving licence at the time of the incident and if the person was not having effective driving licence, then the terms of the agreement of insurance, is materially breached and, so no relief can be claimed under such Agreement, terms of which were violated on material portions by the insured.
9. In the facts of the present case, the driver, Shri Radheshyam Sharma, was not having a effective driving licence on the date of incident i.e. 08.08.2006. His driving licence expired on 05.05.2005 and for a year and more, no action was taken by the driver for renewal of the licence and respondent/complainant was also permitting him to drive the vehicle, though his driving licence, had expired. In these circumstances, on account of this material breach of the terms of the insurance policy, the appellant/Insurance Company was having authority to repudiate the claim of the respondent/complainant and if claim has been repudiated by the appellant/Insurance Company, then action of the Insurance Company does not come in the category of deficiency in service in the facts of the present case.
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10. Learned District Forum, has committed an error in allowing complaint and in awarding compensation on non-standard basis.
11. Therefore, the appeal succeeds and is allowed. The impugned order is set aside. The complaint filed by the respondent/complainant, is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/08/2012 /08/2012