State Consumer Disputes Redressal Commission
Icici Loambard General Insuarance Co. ... vs Girish Chand Dyundi on 19 May, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 113 / 2013
ICICI Lombard General Insurance Company Limited
Regional Office at Eldeco Corporate, 4th Floor
Chambers-1, Vibhuti Khand, Gomti Nagar
Lucknow having its Branch Office at Municipal No. 447
3rd Floor, Opposite Hotel Great Value, Dehradun
through its Authorised Representative Sh. Vivek Negi
...... Appellant / Opposite Party
Versus
Sh. Girish Chandra Dyundi S/o Sh. Bachhi Ram Dyundi
R/o Village Sem, Post Bhatoli
Tehsil Karnaprayag, District Chamoli
...... Respondent / Complainant
Sh. Yogesh Sethi, Learned Counsel for the Appellant
Sh. Pradeep Bartwal, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 19/05/2022
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 02.03.2013 passed by the District Consumer Disputes Redressal Commission, Chamoli (in short "The District Commission") in consumer complaint No. 21 of 2011; Sh. Girish Chandra Dyundi Vs. ICICI Lombard General Insurance Company Limited, by which the consumer complaint was allowed and the appellant was directed to pay compensation of Rs. 1,80,841/- to the respondent - complainant together with Rs. 10,000/- towards mental and financial agony and Rs. 1,000/- towards litigation expenses, within a period of one month, 2 failing which the above amount was directed to carry interest @5% p.a. from the date of accident till payment.
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, after availing loan facility from Cooperative Bank, Karnaprayag, the respondent - complainant had purchased Maruti Alto car bearing registration No. UK11-2527. The said vehicle was insured with the appellant - opposite party for the period from 24.11.2009 to 23.11.2020 at an IDV of Rs. 2,18,835/-. The insured vehicle met with an accident on 26.04.2010 at 8:00 a.m. at Chandpurgarhi. In the said accident, the complainant sustained grievous injuries. The F.I.R. of the accident was lodged with the P.S. Karnaprayag. At the time of accident, all the documents of the vehicle were in order. Upon giving intimation of accident to the insurance company, the insurance company appointed surveyor Sh. Rajeev Kumar Gupta, who visited the spot and took photographs. The surveyor asked the complainant to get the vehicle repaired from Rakesh Automobile Engineers, Rishikesh, authorised service centre of Maruti company. The complainant got the vehicle towed from the accident site to the above-mentioned workshop and completed all the required formalities. In the month of May, 2010, final survey of the vehicle was conducted by the surveyor of the insurance company, but for a period of three months', no sanction was given by the insurance company with regard to repairs of the vehicle, with the result that the complainant had to take the vehicle to Pinder Automobiles, Simli, District Chamoli, authorised service centre of Maruti company, where sum of Rs. 1,49,841/- was spent towards repairs of the vehicle. The complainant submitted the repair bills of the vehicle with the insurance company. The insurance company, however, repudiated the claim vide letter dated 15.06.2010 on false ground that the complainant was not having a valid and effective driving licence.
3Thus, consumer complaint was instituted before the District Commission.
3. The insurance company filed written statement before the District Commission, wherein it was averred that at the time of accident, "L" sign was not painted either on the front or rear of the vehicle. As per the report dated 02.06.2010 of the surveyor, on the date of accident, the driver was having learning driving licence. The claim of the complainant was repudiated vide letter dated 15.06.2010 on the ground that the driver of the vehicle in question was not having a valid and effective driving licence to drive the vehicle under Rule 3 of Central Motor Vehicles Rules, 1989 (hereinafter to be referred as "the Rules"). No deficiency in service was committed by the insurance company by repudiating the complainant's claim.
4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 02.03.2013, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant has preferred the instant appeal.
5. We have heard rival arguments advanced by learned counsel for the parties and perused the record.
6. Learned counsel for the appellant - insurance company submitted that the owner / driver of the vehicle was not having a valid and effective driving licence to drive the vehicle in question at the time of occurrence, hence the claim of the complainant has been rightly repudiated by the insurance company. The impugned judgment and order passed by learned District Commission suffers from legal infirmity. Thus, the appeal deserves to be allowed and the 4 impugned judgment and order passed by learned District Commission is liable to be set aside.
7. Per contra, learned counsel for respondent - complainant submitted that the owner / driver of the vehicle (complainant) was having a valid and effective driving licence, as required under law, hence the repudiation of the claim by the insurance company was not justified at all. The impugned judgment and order passed by learned District Commission is well reasoned. The appeal has no legs to stand and the same is liable to be dismissed.
8. It is admitted fact that the vehicle in question was comprehensively insured with the appellant for the period from 24.11.2009 to 23.11.2020 by payment of premium of Rs. 7,739/- and the accident took place during the validity period of the insurance policy. It is also admitted that the claim of the complainant has been repudiated by the insurance company on the ground that the driver of vehicle was not holding a valid and effective driving licence. The only question to be determined in this appeal is whether the owner / driver of the vehicle in question was having a valid and effective driving licence according to law or not.
9. Learned counsel for the appellant submitted that the owner / driver of the vehicle was having a learning driving licence. His further submission is that surveyor was appointed by the insurance company to visit the place of occurrence and submit his report to the insurance company. After inspection, the surveyor submitted his report to the insurance company, in which it was mentioned that the driver of the vehicle was having a learner's licence. We find from the record that the owner of the vehicle / complainant has been examined before the District Commission and he was put to cross-examination 5 on behalf of the appellant, in which he has stated that he is the owner of the vehicle and he was having a learner's driving licence on the date of occurrence and one person was sitting in the vehicle along with him, who was not having driving licence to drive the vehicle. Learned counsel for the appellant submitted that there was no compliance of Rule 3 of the Rules, according to which, a learner's licence holder should be accompanied by a person having effective driving licence to drive the vehicle and letter "L" should be painted on the front and rear of the vehicle. Relevant portion of Rule 3 of the said Rules is reproduced below:
"3. General - The provisions of sub-section (1) of Sec. 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as -
(a) ..................................................
(b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and
(c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in red on a white background........"
10. Thus, according to provision of Rule 3 of the Rules, aforesaid compliance as contained in sub-rule (b) and (c) of Rule 3 of the Rules is required. It is borne out from the record that the person sitting in the vehicle with the driver / owner thereof, was not having a valid and effective driving licence to drive the vehicle. The burden to prove that letter "L" was painted in the front and rear of the vehicle, was upon the complainant, but he has failed to discharge his burden. Accordingly, it is established from the record that the owner / driver 6 of the vehicle was not having a valid and effective driving licence to drive the vehicle in question.
11. Learned counsel for the appellant has cited judgment and order dated 09.05.2017 rendered by Hon'ble National Commission in Revision Petition No. 1407 of 2014; Reliance General Insurance Company Limited Vs. Jivabhai Maldebhai Godhaniya, wherein it has been held that if the driver of a commercial vehicle was not having valid driving licence to drive the same, the insured is not entitled to any compensation from the insurance company under the terms and conditions of the insurance policy. Relevant paragraph No. 15 of the said decision is reproduced below:
"15. Considering the overall facts and circumstances of the present case, it is abundantly clear that the vehicle in question was a commercial vehicle, but the person who was driving the vehicle at the time of the accident, did not have a valid and effective licence to drive the same. Considering the distinct requirements laid down in The Motor Vehicles Act, 1988 and The Central Motor Vehicles Rules, 1989 about the grant of licence for commercial vehicles, it is clear that the holder of the LMV licence had no authority to drive the commercial vehicle without proper endorsement from the concerned transport authority. The detailed analysis of the legal provisions, made in para 10 above about the basic requirements for the grant of licence for transport/non-transport vehicles, make it clear that for enabling a person to drive a commercial vehicle, the licencing authority has to ensure that he fulfils the requisite conditions of age, educational qualifications, medical certificate etc. Unless a person satisfies the licencing authority on that score and obtains proper authorisation for driving a commercial vehicle, he cannot be stated to 7 be in possession of a valid and effective driving licence. In the instant case, therefore, there is evidently a fundamental breach of the terms and conditions of the policy for non-possession of a proper licence. It is held, therefore, that the insured is not liable to be granted any compensation by the petitioner under the terms and conditions of the policy."
12. Learned counsel for the appellant has further cited judgment and order dated 01.03.2013 passed by State Consumer Disputes Redressal Commission, U.T., Chandigarh in First Appeal No. 4 of 2013; Bharti Axa General Insurance Company Limited Vs. M/s Barnala Sales Corporation, wherein it has been held that if the driver of a transport vehicle is having driving licence to drive light motor vehicle, he can not be said to have valid driving licence under Section 3 of the Motor Vehicles Act, 1988 and it is fundamental breach of the terms and conditions of the insurance policy and repudiation of the claim by the insurance company is justified. Relevant paragraph No. 14 of the said decision is reproduced below:
"14. No doubt, the respondent/complainant, placed reliance on National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi and Others, (2008) 3 Supreme Court Cases 464 and Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., (1996) 6 SCC 620 in support of his contention that Dinesh Kaushik, driver, was legally authorized to drive the vehicle, in question, especially, when it was empty, at the time of accident. National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesaragi related to the validity of a driving licence, to drive LMV before the amendment was carried out, in Rule 2(e) of the Central Motor Vehicles Rules, 1989. The amendment in the said Rules was operative w.e.f. 28.03.2001. Under these 8 circumstances, the ratio of law, laid down, in that case, was not applicable to the instant case, as the licence, in the present case was issued to the driver on 23.02.2007, after the amendment of 1989 Rules. In Ashok Gangadhar Maratha's case (supra), no specific principle of law, was laid down, that a holder of licence, for driving LMV, could drive a transport vehicle. In that case, no documents were placed, on record, by the Insurance Company, that infact the vehicle, in question, which was being driven by the driver, who was holding LMV licence, was a transport vehicle. It was, under these circumstances, that the Hon'ble Supreme Court, held that the repudiation of the claim of the complainant, by the Insurance Company was illegal. No help, therefore, could be drawn by the Counsel for the respondent/complainant, from the ratio of law, laid down, in the aforesaid cases. In this view of the matter, it is held that since, in the instant case, the driver of the vehicle was not holding an effective and valid driving licence, for driving the vehicle, in question, there was a breach of provisions of Section 3 of the Motor Vehicles Act and the fundamental terms and conditions of the Insurance Policy. Under these circumstances, the Opposite Party, legally and validly, repudiated the claim of the complainant. There was therefore, no deficiency, in rendering service, on the part of the Opposite Party, by legally and validly, repudiating the claim of the complainant."
13. Learned counsel for respondent submitted that even if the driver of the vehicle was having a learning driving licence to drive the vehicle in question, the complainant is entitled to compensation from the insurance company. He has cited the decision of Hon'ble Apex Court in the case of Mahamooda and others Vs. United India Insurance Company Limited and others reported in III (2006) ACC 242 (SC), in which it has been held that even when driver of the 9 vehicle was having a learner's licence to drive the vehicle, the claimant is entitled to receive compensation from the insurance company. Relevant paragraph No. 4 of the said decision is reproduced below:
"4. We find that the High Court relied on a decision of this Court in New India Assurance Co. Ltd. v. Mandar Madhav Tamble, I (1996) ACC 392 = 1996 (1) Apex Court Journal 190 (S.C.). The issue related to the liability of an insurer when the offending vehicle is driven by a person holding a learner's licence. The High Court held that in view of the decision in Madhav Tamble case, the Insurance Company has no liability, though the Motor Accident Claims Tribunal herein referred to as "the Tribunal"
had fixed the liability on the Insurance Company. Correctness of the decision in Madhav Tamble case (supra) came to be considered in National Insurance Co. Ltd.
v. Swaran Singh, I (2004) ACC 1 (SC) = I (2004) SLT 345 = (2004) 3 SCC 297. It was held that Madhav Tamble case (supra) was decided on the peculiar facts of the case without taking note of the binding precedents. It was categorically held that even when the offending vehicle was driven by a person holding a learner's licence, the insurer's liability existed. This position has been clarified in paras 93 and 94 of the judgment."
14. It is worth noting that the aforesaid case laws of Reliance General Insurance Company Limited (supra) and Bharti Axa General Insurance Company Limited (supra), cited by learned counsel for the appellant, are related to Own Damage Claim, while the aforesaid case law of Mahamooda and others (supra), cited by learned counsel for respondent, is related to Third Party Claim and not Own Damage Claim. Hence, the aforesaid case law of Mahamooda 10 and others (supra), is of no help to the respondent. Thus, in the light of law laid down in the aforesaid cases of Reliance General Insurance Company Limited (supra) and Bharti Axa General Insurance Company Limited (supra), the owner / driver of the vehicle in question was not having a valid and effective driving licence to drive the vehicle in question, which is fundamental breach of the terms and conditions of the insurance policy. Hence, the repudiation of the complainant's claim by the insurance company was valid and justified.
15. For the foregoing reasons, we are of the considered opinion that impugned judgment and order passed by learned District Commission suffers from material illegality. The appeal deserves to be allowed and impugned judgment and order passed by learned District Commission is liable to be set aside.
16. Consequently, the appeal is allowed. Impugned judgment and order dated 02.03.2013 passed by the District Commission is set aside and consumer complaint No. 21 of 2011 is dismissed. No order as to costs. The amount deposited by the appellant with this Commission, be released in its favour.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K