National Consumer Disputes Redressal
Bajaj Allianz General Ins.Co.Ltd. vs Smt. Lakshmi @ Lakshmamma on 8 April, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1433 OF
2008
(Against the order
dated 09.01.2008
in Appeal/ Complaint No.566/2007
of
the State Commission,
Karnataka)
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
REG. OFFICE GE PLAZA, AIRPORT ROAD, YERWADA,
PUNE-411006
REGIONAL OFFICE 1, DLF INDL. PLOT, IIND FLOOR, MOTI
NA GAR,
NEW DELHI-110015
........ Petitioner
Vs.
1. SMT.
LAKSHMI @ LAKSHMAMMA
R/O KANNALI VILLAGE, KASABA
HOBLI, MANDYA 571401,
KARNATAKA
2. MS.ARCHANA(MINOR)
THROUGH MOTHER
R/O KANNALI VILLAGE, KASABA
HOBLI, MANDYA 571401,
KARNATAKA
3. MS.
KEERTHANA (MINOR)
THROUGH MOTHER
R/O KANNALI VILLAGE, KASABA
HOBLI, MANDYA 571401,
KARNATAKA
........ Respondent
BEFORE:
HON'BLE
MR. JUSTICE R.K. BATTA, PRESIDING MEMBER
HON'BLE MR. S.K. NAIK, MEMBER
For the Petitioner
: Ms. Peeta Mishra, Advocate
For the
Respondent : Nemo
Pronounced on :_08.04.2009
ORDER
PER S.K. NAIK, MEMBER Through this revision petition Bajaj Allianz General Insurance Co.Ltd. the petitioner seeks to challenge the order dated 9.1.2008 of Karnataka State Consumer Disputes Redressal Commission, Banglore (for short the State Commission) whereby the State Commission has set aside the order dated 23.2.2007 of Mandya District Consumer Disputes Redressal Forum, Mandya (for short the District Forum) dismissing the complaint and has directed the petitioner to pay a sum of Rs.2 lakhs to the respondent/complainants with interest @ 6% p.a. from the date of complaint.
Brief facts giving rise to the consumer dispute are that ---- the deceased Shri K.C.Basavaraju was the owner of a three wheeler goods auto rickshaw, a transport vehicle which was insured with the petitioner/opposite party for personal risk of Rs.2 lakhs from 12.4.2006 to 11.4.2007. During the currency of the said insurance policy, Shri K.C.Basavaraju while driving the auto rickshaw met with an collision accident involving a lorry resulting in his death. The Police had registered a complaint against the lorry driver under Section 277, 337 and 304-A of the IPC. The information with regard to the accident was given to the petitioner/opposite party.
Later, the widow of the deceased in her own behalf and as the guardian of her two minor daughters filed a claim for payment of the amount of insurance with bonus etc. When repeated request in the matter did not evoke any response, a legal notice was also issued but this too did not meet with any favourable response. The complaint thereafter was field before the District Forum. The District Forum on perusal of the evidence produced before it and after hearing both the sides, arrived at the finding that the deceased was holding driving license for a non-transport three wheeler auto rickshaw at the time of accident which was clear violation of Section 3 of the Motor Vehicle Act, 1988 and also breach of terms and conditions of the policy.
The complaint accordingly was dismissed.
In the appeal before the State Commission, filed by the complainants, the State Commission has reversed the order passed by the District Forum and as stated earlier, directed the petitioner/opposite party interalia to pay Rs.2 lakhs to the complainants with 6% interest p.a. from the date of filing of the complaint before the District Forum.
Aggrieved upon this order of the State Commission that the petitioner/opposite party i.e. insurance company has filed this revision petition.
Undisputed admitted facts in the case are that the deceased Shri K.C.Basavaraju was the owner of the three wheeler goods auto rickshaw, a transport vehicle, bearing registration No.KA-11-6320. The vehicle was duly insured from 12.4.2006 to 11.4.2007 with regard to personal accident cover for the owner driver for Rs.2 lakhs. It is also not in dispute that Shri Basavaraju, owner himself was driving the vehicle at the time of the accident during the period of validity of insurance policy. The only ground on which the petitioner/opposite party insurance company has repudiated the claim pertains to whether the deceased owner of the vehicle had a valid driving license at the time of accident. Based on the evidence (Ex.R-6) produced before it, the District Forum has arrived at the conclusion, in our view rightly so ; that the deceased owner as per the driving license was authorized to drive a three wheeler non-transport vehicle/auto rickshaw. The driving license did not have any endorsement with regard to the driving of a transport/goods auto rickshaw/vehicle.
Thus, there was a clear breach of not only the conditions of the insurance policy but also of Section 3 of the Motor Vehicle Act, 1988.
The State Commission, relying solely on the judgment of the Supreme Court in the case of Jitendra Kumar Vs. Oriental Insurance Co. Ltd. reported in (2003) 4 CLD 685 (SC) has held that since the death of the insured was because of the negligence of the driver of the lorry, the opposite party was not right in repudiating the claim of the complainants. The State Commission has brought in the question of nexus which cannot be a remedy for an invalid license.
The State Commission has failed to consider the reliance placed by the District Forum in the case of National Insurance Co. Vs. Kusum Rai in which the Honble Apex Court has held that when the Jeep which was being used as Taxi was being driven by a driver holding driving license of light motor vehicle which did not entitle him driving a commercial vehicle, it amounted to a breach of condition of the insurance. Learned counsel for the petitioner has also referred to latest judgment of the Apex Court in the case of Oriental Insurance Co.Ltd. Vs. Prithvi Raj reported in MANU/SC/0685/2008, the ratio Decidendi of which states that insurance company has no liability where the driver did not have a valid license. Earlier, the Supreme Court in the case of Oriental Insurance Co.Ltd. Vs.Sony Cheriyan reported in MANU/SC/0495/ 1999 held that the terms of the agreement to be strictly construed to determine extent of liability of insurer. In the present case, there has been a clear breach of terms of the policy and, therefore, the petitioner insurance company was not liable.
In the case of National Insurance Co.Ltd. Vs. Prabhu Lal reported in MANU/SC/4527/2007, the Honble Supreme Court held that a person holding license to ply light motor vehicle cannot ply transport vehicle unless there is a specific endorsement to that effect as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. It is to be noted that in the case before the Apex Court, number of earlier judgments including that of Jitendra Kumar Vs. Oriental Insurance Co.Ltd., strongly relied upon by the State Commission, were referred to by the contesting parties. Going by this ruling of the Honble Supreme Court, the deceased in this case was required to have had an endorsement on his driving license to drive a goods/transport vehicle, absence of which made it an invalid license. Moreover, as contended by the learned counsel for the petitioner, the subject matter of the claim in the matter pertaining to Jitendra Kumars case pertains to accidental damage to the vehicle for which the driver of vehicle was not at all responsible and the same stands on entirely different footing. In that case the vehicle while running had caught fire due to mechanical defect and has burnt for which the driver was not responsible.
In the case of National Insurance Co.Ltd. Vs. Laxmi Narain Dhut : MANU/SC/1233/2007, Honble Supreme Court has reiterated the view that the validity of driving license in third party claims cannot be extended to other Sections of the policy and hence the claim was not payable in the absence of a valid driving license. Thus, the crystallized legal position as of now is that unless the condition of a policy with regard to holding of a valid driving license is fulfilled, the insurance company could not be forced/made liable to meet the claim.
As per requirements under Section 3 of Motor Vehicle Act., 1988 and rules framed there under, an endorsement with regard to driving of a goods/transport vehicle is a pre-requisite necessity to make it legally valid which in the case in hand was not there. While the District Forum had correctly interpreted the law on the subject, the State Commission has erroneously set aside the District Forums order relying solely on the judgment in the case of Jitendra Kumar Vs. Oriental Insurance Co. (supra) which is not at all attracted and cannot be applied to the facts and circumstances of the case. The order of the State Commission being unsustainable is, therefore, set aside and the revision petition is allowed with the result that the complaint stands dismissed. Under the circumstances of the case, parties are to bear their own cost of litigation.
Sd/ (R.K. BATTA) (PRESIDING MEMBER) Sd/ (S.K. NAIK) MEMBER St/14