ASHOK vs ORIENTAL INSURANCE CO. LTD., BIJAPUR

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act, 1986.

THE complainant is the owner of a ''Light Motor Vehicle'' Swaraj Mazda Truck bearing Registration No. KA-28-567. THE said vehicle was insured with the opposite party for the period from 17.2.1991 to 16.2.1992. On 26.11.91, the said vehicle met with an accident and a claim was preferred by the complainant with the opposite party. THE opposite party rejected the claim on the ground that the driver of the vehicle who drove the vehicle at the time of accident, was not having a valid licence to drive the transport vehicle. THE complainant, claimed a sum of Rs. 5,61,000/- from the opposite party towards compensation. The opposite party, in its counter, pointed out that the vehicle of the complainant was a transport vehicle and that the driver who drove the vehicle at the time of accident was not having a proper licence to drive a transport vehicle. According to the opposite party, for driving a transport vehicle, a specific authorisation is necessary under the Act and there was no such authorisation in the licence issued to the driver, the policy was, therefore, unenforceable. The specific averments of the opposite party, in this regard at para 14 of the counter, read as under : "14. This respondent state that the said assessment of the surveyor was subject to the condition that the insured had not violated the terms and conditions of the policy. This respondent state that on verification of the documents produced by the insured revealed that the vehicle in question was a light goods vehicle and hence a transport vehicle. The driving particulars of the driver, Naga Saheb Jadhav which was produced by the insured disclosed that he had held a driving licence to drive light motor vehicle only which was valid for the period 27.2.90 to 26.2.99. This driving licence, thus revealed that Naga Saheb Jadhav was not authorised to drive a transport vehicle. This respondent state that the insured had committed breach of the terms of the policy and violated the provisions of M.V. Act, 1988 in entrusting a transport, vehicle to a person who had not held a valid driving licence to drive a transport vehicle and as a consequence thereof, this respondent was not liable to indemnify their insured in respect of the own damage claim lodged vide his claim form dated 16.12.1991."

The opposite party, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry, the complainant examined himself as CW-1 and got Exs. C-1 to C-11 marked in evidence. The opposite party examined its Asstt. Manager, as RW-1 and got Exs. R-1 to R-9 marked in evidence. Having regard to the pleadings of the parties and the submissions made by the learned Counsel for the parties, the points that arise for our consideration are : (1) Whether the driver of the complainant was holding a valid licence at the time of accident to drive the vehicle? (2) Whether the complainant is entitled for compensation, and if so, to what amount of compensation he is entitled to?

REGARDING Point No. 1 : Ex. C-1 is the copy of the policy of Insurance of the vehicle. It shows that it was "light motor vehicle", the gross weight of which is 5,920 Kgs. that is, less than 6,000 Kgs. Ex. R-3 is the Xerox copy of the driving licence of the driver, who drove the vehicle at the time of accident. It shows that the driver, Sri Nana Saheb Jadhav, had the driving licence for driving a light motor vehicle from 27.2.1990 to 26.2.1999, the accident occurred on 26.11.1991. In the policy, Ex. C-1, as against the column "driver" it is stated as follows : "Drivers Clause : Persons or classes of persons entitled to drive - Any person including insured. Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that if a person holding an effective learner''s licence may also drive the vehicle when not used for the transport of goods at the time of the accident and that such a person satisfies the requirements of Rule No. 3 of the Central Motor Vehicles Rules, 1989."

AS referred above, the driver of the vehicle, Sri Nana Saheb Jadhav, at the time of accident was holding a driving licence for driving a light motor vehicle and the vehicle insured which met with accident was a light motor vehicle. AS per the conditions of the Policy of Insurance, referred above, the person driving the vehicle at the time of accident must hold an effective driving licence.

THE learned Counsel for the opposite party, submitted that the vehicle, in question was, a transport vehicle, and driver of such a vehicle must necessarily have a specific endorsement in the licence to entitle him specifically to drive the said vehicle. As it is evident that no such specific endorsement was found on the licence of the driver, so the person who drove the vehicle at the time of accident was not entitled to drive the vehicle. THErefore, a claim of the complainant was untenable. He relied upon the following decisions : - (1) United India Insurance Co. Ltd. v. Palaniammal & Others reported in 1991 ACJ page 434; (2) United India Insurance Co. Ltd. v. K. Subramaniam & Others reported in 1991 ACJ page 625, and also on the decision in (3) K.A.M. Ashraf v. National Insurance Co. Ltd., reported in Volume-II (1993) CPJ 1179. THE decisions reported in 1991 ACJ are the decisions of a learned Single Judge of the High Court of Madras. THE State Commission, Madras, relied upon those decisions and decided the case in K.A.M. Ashraf v. National Insurance Co. Ltd., and held that the driver of the vehicle involved in the accident had no endorsement in the licence authorising him to drive the particular vehicle at the time of accident, as required under Section 3 of the Motor Vehicles Act, and so the claim made by the complainant was not maintainable. THE Division Bench of the Madras High Court, in Dhanaraj & Another v. Rubia and Another reported in 1992 ACJ page 84, considering this material question, held, at para 5 of its order, as under : "5. THE appeal by the claimants is not only for enhancing the compensation but also for a decree against the insurance company. A similar question arose before this Court in E. Enjanadevi v. Arumugham, 1983 ACJ 625 (Madras). This Court posed the following point for determination : ''THE substantial question that arises in this case is to determine whether driver of a tourist car is required under the Motor Vehicles Act, 1939 to have a special authorisation in addition to the usual licence to drive a light motor vehicle to enable him to drive the tourist car as contended by the learned Counsel for the insurance company."

THE insurance company in that case showed that the vehicle had been registered as a tourist taxi and it can be used only in connection with the insured''s business of running it as a tourist vehicle. Further under the head ''driver'' the policy in that case had stated that the vehicle could be driven by the insured or by any other person in his employ, holding a licence to drive the vehicle. Relying on Section 3(1) of the Motor Vehicles Act, it was held that the driver did not have a valid licence to drive a tourist taxi. It was, therefore, held that the insurance company was not liable to meet the compensation. In the case before us, there is some proof that the driver of TMV 8481 did not have a licence to drive a tourist vehicle. But the question that still remains is whether the policy in this case insisted on the driver having a licence to drive a tourist vehicle. It is not disputed that the driver did have a licence to drive light motor vehicle like the car TMV 8481. Exh. 7 is the policy issued by the second respondent company for the period from 28.9.1981 to 27.9.1982. As against the column "Business/profession" the policy is left blank. THErefore, the endorsement in the policy that usage in connection with the insured''s business does not convey any meaning, because the business is not indicated. This is a vital point of difference between the judgment in E. Enjanadevi v. Arumugham, 1983 ACJ 625 (Madras), because in that case, it is seen from the judgment that the insured''s business was running a tourist taxi. Secondly, as against the word ''driver'' it is stated as follows : (a) the insured : (b) any other person provided he is in the insured''s employ and is driving on his order or with his permission; Provided that the person driving holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner''s licence) and is not disqualified from holding or obtaining such a licence.'' THE words "holds a driving licence at the time of the accident" is definitely satisfied in this case because the driver of TMV 8481 did have a licence to drive a light motor vehicle. In the judgment quoted above, it is seen that as against the word ''driver'', it was stated that the vehicle could be driven by the insured or by any other person in his employ holding a licence to drive the vehicle. THE reference to the vehicle is missing in the policy before us. Further, the words ''or had held a permanent driving licence (other than a learner''s licence) and is not disqualified from holding or obtaining such a licence'' suggest that even if the driver had a permanent driving licence and is subsequently not disqualified from holding such a licence, the insurance company cannot escape liability. THE words seem to suggest that even if on the date of the accident, the driver did not have a licence the fact that he had earlier a permanent licence and is not disqualified on the date of the accident is sufficient to fasten the liability on the insurance company. Learned Counsel for the appellants relied on Rule 5(b) of the M.V. Rules to say that the eligibility for getting a licence to drive a tourist vehicle is only one year experience as a driver."

In the said case, the vehicle involved was a tourist vehicle. The driver who drove the vehicle at the time of accident was having a licence to drive a light motor vehicle. There was no specific endorsement on the licence authorising him to drive a tourist vehicle. It was held that the driver had a licence to drive and was not disqualified to hold a licence on the date of accident, was sufficient to fasten liability on the Insurance Co. In Canara Motor and General Insurance Co. Ltd. v. Abdul Hamid Khan Saheb and Another, reported in 1984 A.C.J. page 467, the High Court of Bombay, held as under : "Motor Vehicles Act, 1939, Sections 2, 3, 5, 96(2)(b)(ii) and Bombay Motor Vehicles Rules, 1959, Chapter II, Rule 4 - Motor Insurance-Driving Licence-Condition excluding driving by any person ''who is not duly licensed'' - Meaning of condition in the policy ''held a licence to drive the motor vehicle'' - Whether the Insurance Company can defeat the claim on the ground that the driver who was driving the taxi, though holding a valid licence did not have an endorsement on it enabling him to drive a taxi - Held : No. The condition appearing in the policy refers more to the type of vehicle rather than the mode of its user. The vehicle involved was a Fiat car which is a light motor vehicle and the driver did possess a valid licence for driving a light motor vehicle."

In the present case, it is not disputed that the driver of the vehicle who drove the vehicle at the time of accident was holding a licence to drive light motor vehicle. Admittedly, the vehicle was a light motor vehicle. The specific wordings used in the policy regarding ''driver''s clause'' as referred above, any person including the insured, provided that a person driving the vehicle holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. These words suggest that if the driver had a driving licence and subsequently was not disqualified from holding or obtaining such a licence, the Insurance Co., cannot escape its liability. The words seem to suggest that even on the date of accident, if the driver did not have a licence, the fact that he was not disqualified on the date of accident from holding or obtaining such a licence was sufficient to fasten the liability on the Insurance Company.

IN the present case, as referred above, the driver who drove the vehicle at the time of accident, had as a matter of fact, a valid driving licence for driving a light motor vehicle and there is no material on record to show that he was disqualified from holding or obtaining such a licence at the time of accident. IN view of these facts and in the circumstances of the case, we are satisfied that the policy does not insist on the driver having a licence to drive, to obtain a specific endorsement to drive a transport vehicle. In the present case, the Insurance Co. did not produce the original driving licence, but produced a xerox copy of driving licence, as per Ex.R-3, said to have been obtained by the driver Sri Nana Saheb Jadhav.

IN Savithri v. Laxmichand, reported in 1988 ACJ page 909 (MP.) it was held that unless the original driving licence is produced, it may not be possible to find out whether the driver had an endorsement for driving a specific, vehicle. Similarly, in National Insurance Co. Ltd. v. Babu reported in 1990 ACJ page 1003 (Madras) it was held that the plea of the Insurance Company that the accident was caused by a person driving a vehicle with a temporary licence, has to be established only by the Insurance Co. and''in the absence of proof, the Insurance Co. cannot escape from its liability. The wordings at proviso 2 in "driver''s clause" show that even a person holding a learner''s licence may drive the said vehicle when it was not used for the transport of goods at the time of accident.

IN the present case, it is-evident from Ex. R-l "Motor Claim Form" that at the time of accident no goods were being transported in the said vehicle. So it is clear that the INsurance Company cannot escape its liability under the Policy Ex. C-l.

HAVING regard to these facts and in the circumstances, we hold Point No. 1 in the affirmative that is, in favour of the complainant. Regarding Point No. 2 : The vehicle was insured for a sum of Rs. 2,82,000/-, as per the terms in Ex. C-l, the Policy of Insurance. Ex. R-4 and R-7 are the survey reports produced by the opposite party. Ex. R-4 is the preliminary Survey Report and R-7 is the final survey report.

The report, Ex. R-7, shows that the vehicle had sustained very serious damages. The report shows that 144 parts in the vehicle had sustained damage and they were to be replaced. The report further would go to show that the estimate for replacement of those parts was Rs. 2,72,037/- and labour charges for it was Rs. 25,650/-.

EX. R-5 is the estimate regarding the damage to the vehicle, made by M/s. Datta Motor Mechanical Works, Solapur, that estimate shows that 144 parts were to be replaced and the cost of which was Rs. 2,70,312/- and the labour charges for it, as per EX. R-6, was Rs. 25,650/-. These are all undisputed documents. This would go to show that the vehicle had sustained major damages and had virtually become'' crippled. The learned Counsel for the opposite party submitted that the complainant was entitled to the claim of Rs. 1,81,000/- on repair basis, as per the survey report, Ex. R-7. RW-1 has admitted in his evidence that the complainant had requested to settle the claim on a total loss basis and the Surveyor made the estimation on this basis at Rs. 2,70,000/-. RW-1, has in this regard, stated thus : "KSFC had written a letter on behalf of the complainant to settle the claim of the complainant on total loss basis. The complainant also had requested to settle the claim on total loss basis. The assessment on total loss basis made by the Surveyor was Rs. 2,70,000/-. This was made at the instance of the complainant and also KSFC. Ex. C-4, is the letter written by KSFC and Ex. C-5 is the letter written by the complainant requesting to settle the claim on total loss basis."

HAVING regard to the damage sustained by the vehicle, we hold that the complainant is entitled for compensation on the total loss basis and so he would be entitled for the sum of Rs. 2,70,000/-. Hence, Point No, 2, is answered in the affirmative, that is, in favour of the complainant. The complainant has claimed a sum of Rs. 25,000/- towards expenses incurred by him and a sum of Rs. 2 lakhs for mental agony, loss of future earnings etc. The complainant has not placed sufficient and relevant material to award this sum claimed by him. The Insurance Co. is enjoined with the duty to investigate the claim of the claimants with utmost care and diligence. The circumstances would go to show that the opposite party failed to perform its duties in settling the claim, admittedly without any loss of time. In the circumstances, we have no other alternative except to compensate the claimant for the loss which he has suffered by awarding interest on the amount of Rs. 2,70,000/- at 18% p.a. from the date of accident. ORDER In the result, therefore, this complaint is allowed. The opposite party-the Insurance Co. is directed to pay a sum of Rs. 2,70,000/- to the complainant with interest at 18% p.a. from the date of accident, that is, 26.11.1991, till its payment to the complainant. The complainant has to deliver the said damaged vehicle to the opposite party at the time of payment of the said amount by the opposite party to him. The opposite party shall pay a sum of Rs. 2,500/- (Rupees two thousand five hundred only) to the complainant towards costs in this proceeding. The opposite party shall pay the sums so awarded to the complainant within a period of two months from this day. Complaint allowed.