NEW INDIA ASSURANCE CO LTD vs Pushpa Yashwant Ghatge

THIS Revision Petition has arisen out of the Order dated 29.6.1994 of the Maharashtra State Commission at Bombay dismissing the appeal of the petitioner herein against the Order dated 19.5.93 of the District Forum, Kolhapur allowing the claim of the complainant for payment of compensation of Rs. 33,236/ - as the loss to the tempo with interest from the date of application until realisation.

THE complainants son, Shri Prashant Y. Ghatge, had obtained a Commercial Vehicle Policy No. 4157224967 for a Bajaj Tempo bearing Registration No. MXL 2859 for the period 2.6.87 to 1.6.88 for the sum insured of Rs. 1 lakh. While the said tempo was being driven by Shri Prashant Y. Ghatge on 26.7.87 it met with a serious accident resulting into the death of the insured and extensive damage to the vehicle No. MXL 2859. The complainant preferred a claim of Rs. 88,000/ -, but the Surveyor appointed by the Insurance Company had estimated the loss to the extent of Rs. 33,236/ -. The Insurance Company repudiated the claim on the ground that the deceased driver /owner was not holding a valid driving license to drive the vehicle at the time of the accident. The complainant filed a complaint before the District Forum, Kolhapur alleging deficiency in service on the part of the Insurance Company in refusing to settle the claim. The Insurance Company pleaded that the deceased driver/owner had held only a learners driving license in Form No. L.Lr. dated 15.4.86 issued by Regional Transport Authority, Kolhapur authorising the licensee to drive only light motor vehicle for a period of three months and the learners license was not renewed and thus there was no effective driving license with the insured/owner at the time of the accident. The District Forum observed that authorities have been cited before him where the learners license of the driver of the vehicle has been held sufficient compliance of the terms and conditions mentioned in the policy and the same does not amount to a breach of the policy. The District Forum allowed the claim but as the complainant had preferred a claim of Rs. 88,000/ - while the Surveyor appointed by the Insurance Company had estimated the loss to the extent of Rs. 33,236/ -, the Insurance Company was directed to pay to the complainant Rs. 33,236/ - plus interest at the rate of 12% per annum thereof from the date of the application until realisation.

THE State Commission on appeal affirmed the view taken by the District Forum, Kolhapur and held that the person having learners license is a competent person to drive the vehicle on the basis of his license and that it is not the case of the Insurance Company that he was not knowing the driving. It was further held that the exclusion clause of person holding learners license in the policy condition appeared to be not enough to deny the complainants claim which was investigated and was also quantified by the Surveyor of the Insurance Company. The appeal was dismissed.

WE have heard the learned Counsel for the petitioner herein and have gone through the records. There was no specific provision in the Motor Vehicles Act of 1939 corresponding to Section 8 of the Motor Vehicles Act, 1988 laying down the procedure for the grant of learners license. By virtue of definition contained in Section 2(5A) of 1939 Act, the driving license included learners driving license. The Licensing Authorities under the 1939 Act had jurisdiction to issue learners license in the same manner as the driving license on the conditions prescribed with which we are not concerned in this case. An effective driving license by virtue of Section 2(10) of the Act of 1988 read with Chapter II is a driving license other than the learners license, but we are concerned with a case which was before the Act of 1988. The Clause under ''persons or classes of persons entitled to drive'' appearing in the schedule of the said Commercial Vehicle Policy which is the basis of the contract of insurance between the complainants son and the Insurance Company reads as under : ''The persons entitled to drive'' are specified in the policy as under : ''The Insured. Any other person provided he is in the insureds employ and is driving on it his order or with his permission. Provided the person driving holds a valid license to drive the vehicle or has held a permanent driving license (other than a learners license) and is not disqualified from holding or obtaining such a license.

 The learners license issued to the insured/owner Shri Prashant Y. Ghatge is dated 15.4.86 issued by the Regional Transport Authority, Kolhapur, but it authorised the licensee to drive only light motor vehicle for a period of three months. Learners driving license thus expired on 15.7.1986 after three months and it was not renewed.. It is thus evident that the driver/owner Shri Prashant Y. Ghatge had no valid license to drive the insured vehicle at the time of the accident. Hence, the District Forum could not assume jurisdiction by deciding factual foundation wrongly. The person or classes of persons entitled to drive the vehicle excluded a person holding a learners driving license. In this case even the learners driving license had expired on 15.7.86 and had not been renewed or extended and it was not valid on the date of the accident. The Insurance Company had repudiated the claim and had given detailed reasons of repudiation. The repudiation of the claim by the Insurance Company on the ground that the driver was not holding a valid driving license at the time of the accident could not be termed as deficiency in service or negligence on the part of the Insurance Company within the meaning of Section 2(g) of the Consumer Protection Act, 1986. The orders of the State Commission as well as the District Forum are contrary to the conditions of the policy and are entitled to be set aside.

THE Revision Petition is allowed. The impugned orders of the State Commission dated 29.6.94 and of the District Forum dated 19.4.93 are hereby set aside and the complaint dismissed. There will be no order as to costs of these proceedings throughout. Revision Petition allowed.