ANIL KUMAR vs NEW INDIA ASSURANCE CO. LTD.

THIS is an appeal against order dated 21.6.1995 passed by District Consumer Disputes Redressal Forum, Bhopal in their Case No. 222/93 whereby the District Forum has dismissed the complaint of the complainant/appellant on the ground that Mr. P.K. Srivastava who was driving the Car No. M.P.-04-F-489 at the time of accident, did not hold a valid licence to drive a taxi.

THE appellant has argued that Mr. P.K. Srivastava had a valid driving licence for LMV and the vehicle was a car though registered as Taxi, stating further that his family members were travelling in the car at the time of accident and the policy does not make a mention that the driver should have a licence for driving taxi. A perusal of the policy indicates that the vehicle is recorded as "Taxi Car" in the policy. The terms and conditions of the policy as recorded therein provide that the person driving the vehicle must hold or had held or has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor Vehicles Act and the rules made there under for the time being in force to drive the category of motor vehicle insured hereunder.

Mr. P.K. Srivastava, brother-in-law of the owner of the car was driving the vehicle carrying his family members at the time of the accident. He held a valid licence to drive an LMV but did not hold a specific authorisation for driving a "transport vehicle" as required by Section 3 of Motor Vehicles Act nor such authorisation was endorsed in his licence, nor he ever earlier held such authorisation.

SECTION 3(1) of the Motor Vehicles Act, 1988 provides as follows: "SECTION 3(1)-No person shall drive 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 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."

As is evident from the exception carved out within the brackets in the text of the above provision of the Section 3(1), the prohibition to drive a transport vehicle by person without his driving licence specifically entitling him so to do, does not apply to a motor-cab, that is to say a taxi car. As such the breach of condition of the policy inasmuch as driving licence of Mr. P.K. Srivastava did not have the endorsement of taxi-car is not material and is only technical in nature. Such technical breach of policy is not so fundamental a breach as to afford the insurer a right to eschew liability altogether. The exclusion term of insurance policy has to be read down to serve the main purpose of the policy, that is indemnify the damage caused to the vehicle in accord with Skandia''s case (AIR 1987 SC 1184). Reliance is also placed in this connection on the case of B.V. Nagaraju v. M/s. Oriental Insurance Company Ltd., II (1996) CPJ 18 (NC)=AIR 1996 SC 2054.

IT is not the case of the opposite party respondent/insurance Company, as it could not be, that the breach of condition of policy inasmuch as the driving licence authorising driving of LMV did not have endorsement of taxi-car, has nothing to do with any contributory factor to the cause of accident. The exception to the requirement of specific authorisation for entitlement of driving of transport vehicle of a particular kind by holder of driving licence is available in respect of motor-cab i.e. taxi car as per the provision of Section 3(1) itself. In the instant case the taxi car was being driven by the owner''s brother-in-law Shri P.K. Srivastava who held an LMV licence and as such it cannot amount to any fundamental breach of condition of policy. The circumstance of private use of the taxi car also cannot give rise to any complaint of increase in the risk covered under the insurance policy. In view of the discussion aforesaid, we are of the opinion that the opposite party-Insurance Company is liable to compensate the insured in for deficiency in service in respect of his accidented taxi-car by not settling the claim of the complainant. The opposite party-insurer has been deficient in its service to the insured-complainant. In view of the discussion aforesaid, we are of the opinion that the opposite party-Insurance Company is liable to compensate the insured in respect of his accidented taxi-car by not settling the claim of the complainant. The opposite party-insurer has been deficient it its service to the insured complainant.

THE complainant has filed copies of cash memos of payments made for the repair and purchase of parts in support of his claim. But the Surveyor of the opposite party assessed the damage at Rs. 14,910.50 paise as per the final survey report dated 1.9.1992, which is on record. We accept the Surveyor''s report of the insurer and direct that the insurer opposite party shall pay compensation to the appellant-complainant a sum of Rs. 14,910.50 with interest at the rate of 15% per annum with effect from 1.9.1992 till payment within a period of one month from the date of receipt of this order.

THE appeal is accordingly allowed. THE order of the District Forum is set aside. However, there shall be no order as to cost. Appeal allowed.